Envisaged under section 438 of the Criminal Procedure Code, Anticipatory bail is granted to a person who has an apprehension of arrest in a criminal case. Bail is a relief that a person may receive in order to get temporary freedom until the final judgment of the case is delivered. Depending on how grave the allegations are, a person may be able to avoid arrest. A person can apply for the anticipatory bail even before an FIR is filed by the police, on anticipation that the person has grounds to believe he will be arrested in the near future. In cases pertaining to dowry, anticipatory bail comes up as a big relief to the accused.

How to File?

Anticipatory bail is filed in anticipation of arrest, it is a direction to release a person on bail which is issued prior to the arrest of the person. One may apply for bail after learning that a criminal complaint has been filed against him. It is crucial to know whether the offense for which the FIR has been registered is bailable or non-bailable.


  • Contact a criminal lawyer to apply for pre-arrest bail notice/ anticipatory bail – It is advisable to engage a criminal lawyer of an FIR or criminal complaint has been filed. The lawyer will provide a suitable course of action.
  • Get your lawyer to draft anticipatory bail with the version of the facts of the person filing the bail – The lawyer drafts a bail application with the reasons why the bail should be granted while stating the version of facts.
  • File the application at the relevant sessions court
  • Hearing – When the matter comes up for hearing, the lawyer had to be present for the case and present the same. If the judge deems it fit, bail will be provided. In case the bail application is rejected in the sessions court, an appeal can be made in the high court for the same

Procedure if FIR is Not Filed

Since no FIR is filed, the public prosecutor will be of the view that there are no grounds for filing an anticipatory bail. The judge will agree to this point and ask the lawyer to withdraw the application. The lawyer will then make an oral prayer for a seven days pre-arrest notice in the case where the police decide to formulate an intention to arrest you. The judge is likely to agree to this plea and order called ‘notice bail’ is passed. If rejected, the application can be filed with the high court, and if still rejected. The application can be filed to the Supreme Court.

Procedure if FIR is Filed

In cases where the FIR has been filed, the investigating officer will send an arrest notice. As soon as this notice is received, the aforementioned procedure can be used to file an anticipatory bail.


There are certain conditions that the Court may impose on the person who is being granted bail such as:

The person shall make himself available for interrogation by the police whenever required and that the person shall not leave the country without due permission from the court.


The accused is free on the grant of bail as long as the sessions or high court judge does not cancel the bail. The judge may order to the person be taken back into custody and cancel the bail when the judge thinks it is necessary.

By Aryan Dhingra
2nd Year student of OP Jindal Global University

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