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Code of Criminal Procedure, 1973 · Chapter XXXIII: Provisions As to Bail and Bonds

Section 438: Direction for grant of bail to person apprehending arrest

The Code of Criminal Procedure, 1973 was repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. It still applies to matters and proceedings from before that date, as the repealing law provides.

Now in the BNSS section 482 (Direction for grant of bail to person apprehending arrest)

In plain words

A person who believes they may be arrested for a non-bailable offence can apply to the High Court or Court of Session for a direction that, if arrested, they be released on bail. This is commonly called anticipatory bail.

  • Conditions can include being available for police questioning, not influencing witnesses, not leaving India without permission, and conditions under sub-section (3) of section 437.
  • If later arrested without warrant, they must be released on bail, and any warrant issued by a Magistrate must be bailable.
  • It does not apply to rape of young girls under sub-section (3) of section 376 and sections 376AB, 376DA and 376DB of the Indian Penal Code.

A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.

Read the in-depth explanation, with key Supreme Court rulings ↓

Official text

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in confirmity with the direction of the 1. Subs. by Act 63 of 1980, s. 5, for —reasons‖ (w.e.f. 23-9-1980). 2. Ins. by Act 5 of 2009, s. 31 (w.e.f. 31-12-2009)

Court under sub-section (1). [(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).]

Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.

Source: India Code (Legislative Department), the text of the Act as it stood before its repeal. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here. Official text on India Code.

Understanding this section

Section 438 provides anticipatory bail: a direction by the High Court or Court of Session that if a person is arrested for a non-bailable offence, he shall be released on bail. It protects personal liberty against arrests made to humiliate or harass, and it is decided before any arrest takes place.

Who can apply and when

Any person who has reason to believe he may be arrested for a non-bailable offence. The belief must rest on reasonable grounds, not vague fear. An FIR need not yet have been registered.

Conditions

The court may impose conditions, such as making himself available for interrogation, not influencing witnesses, and not leaving India without permission, along with other conditions available for regular bail.

How long it lasts

A Constitution Bench has held that anticipatory bail need not be limited to a fixed period. Ordinarily it continues until the end of the trial, and does not automatically end when the accused is summoned or charges are framed. The court may still limit it in a particular case if special features require.

Factors courts weigh

The nature and gravity of the accusation, the applicant's role, his antecedents, the possibility of fleeing justice, the risk of tampering with evidence or witnesses, and whether the accusation appears aimed at injuring or humiliating him. The power is discretionary and must be exercised with care, but liberty is not to be lightly curtailed.

Exclusions

The section does not apply to certain grave sexual offences against minors listed in sub-section (4). Some special laws also bar anticipatory bail.

Key Supreme Court rulings

  • Sushila Aggarwal v. State (NCT of Delhi) 2020 INSC 106

    Protection under section 438 should not invariably be limited to a fixed period, and does not normally end when the accused is summoned or charges are framed, but can continue till the end of the trial; courts may impose conditions or limit tenure where special features require. Guiding principles were laid down.

  • Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565

    The foundational Constitution Bench ruling on anticipatory bail; anticipatory bail can be sought on a reasonable belief of arrest for a non-bailable offence, and the registration of a case is not a precondition.

  • Satender Kumar Antil v. Central Bureau of Investigation 2022 INSC 690

    Sections 41 and 41A are facets of Article 21; non-compliance with arrest safeguards entitles the accused to bail, and the Government may consider a separate Bail Act.

Common mistakes

  • Assuming anticipatory bail must be time limited.
  • Applying where there is no reasonable belief of arrest, only general apprehension.
  • Overlooking statutory exclusions under sub-section (4) and special Acts.

Read with: Section 437 CrPC, Section 439 CrPC, Section 482 BNSS

Prepared with AI assistance as a study aid. Every ruling listed was checked against the Supreme Court's own judgments on this site, and quoted words appear in those judgments; linked names open the full judgment. Read the judgments themselves before relying on them. Not legal advice.

Supreme Court judgments citing the section 438