Direction for grant of bail to person apprehending arrest
Section 438 of the Code of Criminal Procedure, 1973 deals with direction for grant of bail to person apprehending arrest. 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 ; The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
(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, be shall be released on bail; and if a Magistrate taking cogniz-
ance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
Section 438, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 482 Direction for grant of bail to person apprehending arrest Text carried over almost unchanged 96%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Sushila Aggarwal v. State (NCT of Delhi)
Court's Decision & Legal Precedent
Anticipatory bail under section 438 CrPC is not limited by a sunset clause in the Code. The protection may continue until the end of trial, but the court may impose conditions and limit duration on the facts. Gurbaksh Singh Sibbia is followed; a contrary line requiring a fixed term is not.
On this section: Anticipatory bail under s.438 is not inherently time-limited; court may mould conditions/duration on facts.
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Vaman Narain Ghiya vs State of Rajasthan
Court's Decision & Legal Precedent
Section 439 of the Code of Criminal Procedure, 1973 requires that an accused person must be in actual custody to file a bail application before the High Court or Court of Session. The protective umbrella provided by anticipatory bail under Section 438 is of limited duration, intended only to allow the accused to move the regular court for bail. Once that limited period expires, the accused cannot bypass the statutory requirement of Section 439 by seeking to extend Section 438 protection. The distinction between Sections 438 and 439 must be maintained, and no part of the statute can be rendered redundant or dead letter by circumventing the express requirement of custody under Section 439.
On this section: Deals with anticipatory bail for persons apprehending arrest; applied to grant protective orders with limited duration
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Abdulla vs The State of Uttar Pradesh
Court's Decision & Legal Precedent
Interim protection against arrest in criminal matters may be granted to accused individuals, but such protection must be conditional upon: (1) compliance with statutory requirements under Section 438(2) of the Criminal Procedure Code, (2) diligent and active participation in the trial proceedings before the trial court, (3) commitment to refrain from conduct that would generate further legal complaints, and (4) an implicit waiver of the right to claim prejudice if trial court takes action based on subsequent complaints. The grant of such interim protection is discretionary and subject to modification if the accused fails to honor these conditions.
On this section: Section 438(2) compliance was mandated as a condition for interim protection against arrest. The Court used this provision to ensure that the bail conditions are properly structured and documented.
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Union of India vs Padam Narain Aggarwal Etc
Court's Decision & Legal Precedent
A court cannot grant blanket anticipatory bail protecting an accused from arrest for any non-bailable offence, nor can it impose conditions such as prior notice before arrest on the statutory power of arrest vested in investigating authorities under section 104 of Customs Act. Anticipatory bail must be specific to identified offence(s), based on applicant's reasonable apprehension of arrest for a non-bailable offence, and cannot include conditions that interfere with or obstruct the legitimate investigative authority and statutory powers of arrest. The jurisdiction to grant anticipatory bail is discretionary but must be exercised within statutory limits and cannot be used to impose judicial obstacles to investigation.
On this section: Provision for granting anticipatory bail. Court extensively analyzed that anticipatory bail must be specific to offence(s), cannot be blanket, must be based on reason to believe founded on reasonable grounds, and becomes operative only upon arrest. No power to impose conditions like prior notice.
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Sudeep Chatterjee vs The State of Bihar
Court's Decision & Legal Precedent
Conditions for anticipatory bail must be reasonable, practicable, and directed towards ensuring a fair trial/investigation; onerous conditions that make the grant of bail illusory or impossible to perform are legally unsustainable.
On this section: Provisions for grant of bail to persons apprehending arrest.
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Sasikala Pushpa vs The State of Tamil Nadu Rep. by the Inspector of Police
Court's Decision & Legal Precedent
A clerical error or incorrect statement regarding date and place in a procedural document like a vakalatnama, where the party admits to the genuine signatures and provides a plausible explanation for the error, does not constitute forgery or fraud upon the court warranting criminal prosecution under Sections 193, 466, 468, and 471 IPC. Fraud requires mens rea (criminal intention) to deceive and cause wrongful gain or loss. Before exercising jurisdiction under Section 340 Cr.P.C. to direct a criminal complaint, the court must be satisfied that it is 'expedient in the interest of justice' by weighing the effect on administration of justice, not merely the injury to a person. A mere incorrect statement in a procedural document that has no bearing on the merits of the case and causes no demonstrable harm to the administration of justice does not justify criminal prosecution.
On this section: Anticipatory bail; basis for bail applications filed by appellants
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Narendra K Amin vs State of Gujarat
Court's Decision & Legal Precedent
Where a trial court while granting bail acts on irrelevant materials or takes into account irrelevant materials of substantial nature, the High Court or superior court can cancel such bail under Section 439(2) of the Code of Criminal Procedure, 1973 without requiring supervening circumstances, as the order granting bail becomes vulnerable on account of the perversity arising from consideration of irrelevant materials. The parameters for granting bail and canceling bail are different. While re-appreciation of evidence should be avoided, consideration of irrelevant materials renders the bail order liable for cancellation.
On this section: Anticipatory bail granted on June 4, 2007 which was later cancelled
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Umar Ansari vs State of Uttar Pradesh
Court's Decision & Legal Precedent
Criminal antecedents of an accused are a relevant consideration in bail matters but are not an absolute bar to granting anticipatory bail. Where co-accused persons have been granted bail and the core attribution of criminal conduct is disputed to be a matter of trial, bail may be granted with appropriate conditions ensuring trial participation and court appearance, provided the court is satisfied that the case has factual and legal merit for such grant.
On this section: Provision relating to anticipatory bail; Supreme Court SLP filed challenging High Court order under this section
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Animesh Agarwal vs The State of Chhattisgarh
Court's Decision & Legal Precedent
In bail matters arising from domestic violence allegations, absolute rejection of anticipatory bail is not sustainable when the accused demonstrates responsibility and cooperation with investigation. Relief should be granted through conditional bail upon arrest by the Trial Court, with explicit conditions requiring cooperation with investigation and compliance with statutory bail conditions under Section 482(2) BNSS, rather than through outright anticipatory bail, thereby balancing the accused's right to liberty with the State's interest in effective investigation and victim protection.
On this section: Earlier statutory provision on bail conditions; referenced as the predecessor to BNSS 2023 Section 482(2)
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Ravish Kumar vs The State of Bihar
Court's Decision & Legal Precedent
When the police investigation absolved the accused of criminal involvement yet the court proceeds with cognizance and registration of the FIR based on the original complaint, the peculiar circumstances may justify granting anticipatory bail even for serious criminal offences, subject to appropriate conditions imposed by the trial court.
On this section: Anticipatory bail provisions, under which the petitioner sought protection from arrest
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Arumugam vs The Deputy Superintendent of Police
Court's Decision & Legal Precedent
When a petitioner has been granted interim protection for a considerable period and there is no evidence of violation or change in circumstances, the Supreme Court may confirm such interim protection and convert it into a substantive bail order with specified conditions, taking into account the nature of allegations and the petitioner's compliance record.
On this section: The Court applied the provisions relating to anticipatory bail and its conversion into final bail upon arrest, considering the nature of allegations and the period for which interim protection has been enjoyed
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Bijen Chandra Singh vs The State of Jharkhand
Court's Decision & Legal Precedent
When a co-accused in the same case has been admitted to regular bail and interim protection has already been granted to an accused whose employment is at jeopardy, the balance of convenience favors confirming anticipatory bail with conditions imposed by the trial court to ensure investigation cooperation and trial attendance, rather than denying bail entirely.
On this section: Provision governing anticipatory bail; the court considered the petitioner's entitlement to protection against arrest in anticipation of criminal charges related to causing death by negligence
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Anu Mathew vs State of Kerala
Court's Decision & Legal Precedent
The mere fact that an accused person is residing in a foreign country at the time of filing an anticipatory bail application under Section 438 CrPC does not bar the court from entertaining such application or deprive the court of jurisdiction. However, the court must exercise its discretionary power judicially by assessing whether the accused has made out a bonafide apprehension of arrest, whether the accused absconded with knowledge of the crime or went abroad bonafidely for employment, and whether the accused is willing to cooperate with investigation and trial. The court must impose appropriate conditions under Section 438(2) to regulate the grant of bail and prevent abuse, including conditions that the accused should make himself available for interrogation, should not leave India without court permission, and should come to India within a specified reasonable time limit to cooperate with investigation. The court cannot pass blanket orders restraining arrest but can pass interim bail orders conforming to Section 438 requirements, and can later dispose of the main application by granting final bail with strict conditions. If the accused fails to comply with the conditions, the court has the power to vacate the bail order.
On this section: Core provision on anticipatory bail; court may direct that in event of arrest on accusation of non-bailable offence, person shall be released on bail; conditions can be imposed under subsection (2)
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Padmini vs State Rep.by
Court's Decision & Legal Precedent
When a vehicle is seized in connection with a criminal investigation and formal confiscation proceedings are initiated with proper notice to the owner, the owner's remedy for recovery of the property is not through a return of property petition in the criminal court, but through substantiating her claim before the confiscation authority in accordance with the statutory procedure prescribed under Section 14(4) of the Tamil Nadu Prohibition Act. The confiscation authority is obligated to provide the owner an opportunity to be heard and to pass orders on the merits of the claim.
On this section: Basis for filing Criminal Revision Petition; provides for revision of orders passed by subordinate courts
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Majarid Nadaf @ Majrid Nadaf vs The State of Bihar
Court's Decision & Legal Precedent
Anticipatory bail may be granted in excise cases where the accused was not present at the spot of recovery and is implicated solely as the vehicle owner, provided they have no prior criminal history.
On this section: Conditions for grant of anticipatory bail.
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Sureshkumar vs The Inspector of Police
Court's Decision & Legal Precedent
When investigation into a grave offence involving death in custody is conducted in a casual manner with procedural irregularities such as filing absconding charge sheet against available accused without proper interrogation, and when custodial interrogation is necessary to establish facts, anticipatory bail should not be granted under Section 438 Cr.P.C., and the accused should be directed to surrender and seek regular bail.
On this section: Provision for anticipatory bail; court held that discretionary power should not be exercised when investigation is improper and custodial interrogation is necessary
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… has challenged the impugned judgment and final order dated 10.04.2024 passed Signature Not Verified by the High Court of Madhya Pradesh in MCRC No. 11000 of Digitally signed by VARSHA MENDIRATTA Date: 2025.04.17 15:13:40 IST Reason: 2024 wherein the High Court has allowed anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 [1]( page-1-0) to respondent no. 2 (Abdul Razzak) in connection with FIR No. 176 of 2023 registered at P.S. Omti, Distt. Jabalpur under Sections 195A, 294 and 506 of the Indian Penal Code, 1860. [2]( page-1-1) <span id="page-1-1"></span><span id="page-1-0"></span> 3. …
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… Ram Kishna Balothia , (1995) 3 SCC 221: 1995 SCC (Cri) 439] , the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) " 7 . … We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: 'We agree that this …
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… Ram Kishna Balothia , (1995) 3 SCC 221: 1995 SCC (Cri) 439] , the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) " 7 . … We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: 'We agree that this …
Questions about Section 438
What have the courts held on Section 438 of the Code of Criminal Procedure?
Sushila Aggarwal v. State (NCT of Delhi) (29 Jan 2020) is the leading judgment on this section among those set out below: Anticipatory bail under s.438 is not inherently time-limited; court may mould conditions/duration on facts. Another 15 judgments on this section are set out below, 12 of them from the Supreme Court. They run from 2008 to 2024.
How do I find court cases under Section 438 of the Code of Criminal Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CRPC 438, section 438 CRPC, section 438 of the Code of Criminal Procedure. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 16 reported judgments on this section are set out on this page, beginning with Sushila Aggarwal v. State (NCT of Delhi) (29 Jan 2020).
What should I read with Section 438 of the Code of Criminal Procedure, and has it changed?
Its own text turns on section 437 (When bail may be taken in case of non-bailable offence), so none of them can safely be read on its own. For anything done on or after 1 July 2024 the provision to read is BNSS 482 (Direction for grant of bail to person apprehending arrest), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 438 of the Code of Criminal Procedure come into force?
Section 438 of the Code of Criminal Procedure, commonly called anticipatory bail, and cited as CRPC 438, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.