Section 438 of CrPc talks about direction for grant of bail to person apprehending arrest i.e. Anticipatory bail.

Anticipatory Bail means a direction to release a person on bail issued even before the person is arrested.

Anticipatory bail is useful because sometimes influential person try to implicate a false case against their rivals for disgracing them or to get them detained in jail for some days.

Apart from false cases, there may be a reasonable ground for holding that a person accused of offence is not likely to abscond, or otherwise misuse his liberty while on bail.

There seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

The term Anticipatory Bail is really misnomer because what section 438 talk about is not an Anticipatory Bail, but merely an order relating the accused on bail in the event of his arrest.

Ground to Considered:

Consideration which the High Court or Court of Session sees while granting Anticipatory Bail.

1. The nature and gravity of accusation.
2. The antecedents of the application including the facts as to whether accused has previously undergone imprisonment on conviction by court in a respect pf any cognizable offence.
3. The possibility of applicant's fleeing from justice
4. Whether the accusation have been made with a view to injuring or humiliating the application.

It has been made obligatory for application to serve seven day's notice to Public Prosecution and the SP and only after hearing them, the application will be granted or rejected.

The court making such a direction may, in its discretion, impose conditions including:

• A condition that the person shall make himself available for interrogation by Police officer as and when required.
• A condition that the person shall not make any inducement, threat or promise to any person for dissuading him from disclosing the facts of the case to the count or the Police.
• A condition that a person shall not leave India without previous permission of the Court.

Court of Session and High Court:

Only the Court of Session and the High Court having jurisdiction over the locale of the commission of the offence of which the person in accused, the place of residence or apprehension of arrest may not give jurisdiction.

It is to be presumed that the session court would be first approached for the grant of Anticipatory Bail.

It has also been held that if the petion for anticipatory bail has been rejected by Session Court , the petitioner cannot approach High Court asking for Anticipatory bail on the same ground.

If he moves High Court first and his application got rejected then he cannot approach Session Court with a similar application.

Section 438 Apply?

Section 438 applies on to a non-bailable offences, it is not essential that the offence must also be a cognizable one.

If that person applying has a reasonable ground that he may be arrest on accusation of having committed a non-bailable offence.

The discretion under Section 438 is not to excersied with regard to offence punishable with death or imprisonment for life unless the court at very stage is satisfied that such a charge appears to be false or groundless.

The power under section 438 is of an extraordinary character and must be excersied sparingly in exceptional cases only.

The court should record reason for granting Anticipatory bail.

Anticipatory Bail can be granted to person against whom a magistrate in a complaint case, has issued non-bailable warrant.

Case Law:
In 1980 Gurbaksh Singh Sibbia V. State of Punjab case five judge Supreme Court bench led by the then Chief Justice YV Chandrachud ruled that Section 438 (1) is to be interpreted in the light of Article 21 of constitution (Protection of life and Personal liberty)

It is also observed:
"It may perhaps be right to describe the power as of an extraordinary character...

But this does not justify the conclusion that power must be excersied in exceptional case only, because it is of an extra-ordinary character.

State (CBI) V. Anil Sharma (1997)

Grant of Pre-arrest bail act this stage would elude the success of investigation as the accused know he is protected by order.

The court further noted that the grant of pre-arrest bail in economic offence would definitely hamper the investigation . The bench observed " Anticipatory Bail cannot be granted as a matter of right "

No Anticipatory Bail After Arrest:

The Court held in clear term that provision of Anticipatory bail is to grant bail before the arrest of the application.

Once the applicant is arrested, he can apply for bail under Section 437 or 439 of the CrPc and not under section 438.