What is Section 438 of the bail application?
Asked by: Merl Okuneva | Last update: February 5, 2026Score: 4.6/5 (29 votes)
Section 438 of India's Code of Criminal Procedure (CrPC) deals with Anticipatory Bail, a crucial remedy allowing someone who fears arrest for a non-bailable offense to apply to the High Court or Court of Session for a direction to be released on bail if they are arrested, effectively granting protection before actual custody. It's a preventive measure against false accusations or harassment, enabling a person to get bail at the moment of arrest, unlike regular bail which follows arrest.
What is the meaning of Section 438?
Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek 'Anticipatory Bail'. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.
What is the bail application under section 438?
Section 438 of the Code of Criminal Procedure allows for anticipatory bail for individuals who believe they may be arrested for a non-bailable offense. The section outlines the conditions under which a court may grant such bail, including requirements for cooperation with police and restrictions on leaving the country.
Is Section 438 a fundamental right?
Sub-section 1 of Section 438 of CrPC reads “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 ...
What are the grounds for granting anticipatory bail?
At the time of approaching the Courts to secure Anticipatory Bail, one will need to establish that he has reasonable belief that he may be arrested on accusation of having committed a non-bailable offence or the trial court has taken cognizance of criminal complaint and summons or warrant has been issued against him.
What is Bail? Section 436-439 of CrPC | Procedure for Bail
On what grounds can bail be rejected?
Courts often deny bail in cases involving grave offenses such as murder (Section 302 IPC), rape (Section 376 IPC), terrorism (under UAPA), or narcotics-related crimes (NDPS Act). The rationale is that the severity of the crime raises concerns about societal impact and public safety.
What is the difference between regular bail and anticipatory bail?
Anticipatory bail protects the accused from going to prison. Regular bail allows the release of accused who are already confined. The application is filed before the confinement. The application is filed after the confinement.
What is the Judgement for anticipatory bail?
Judgement: On January 29, 2020, a five-judge bench of the Supreme Court in Sushila Aggarwal and others v. State (NCT of Delhi) unanimously held that anticipatory bail is not subject to any fixed time limit and can remain effective until the conclusion of the trial.
How does section 438 protect individual liberty?
Section 438 of the CrPC provided the legal framework for anticipatory bail until June 30, 2024. This provision allowed any person with reason to believe they may be arrested for a non-bailable offence to approach the High Court or Sessions Court for pre-arrest protection.
What type of right is habeas corpus?
Latin, meaning "you have the body." A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner's continued confinement.
What is the punishment for IPC 438?
Description. Whoever commits, or attempts to commit, by fire or any explosive substance, such mischief as is described in the last preceding section. shall be punished with imprisonment for life. or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
What to do if bail is revoked?
Steps to Take If Your Bail Is Revoked
- Contact Your Attorney Immediately: Legal counsel can provide guidance on your options and represent you in any subsequent hearings.
- Understand the Reasons: Determine why your bail was revoked. ...
- Prepare for a Bail Hearing: You may have the opportunity to request a new bail hearing.
What type of bail system allows the defendant to be released with no immediate requirement?
Instead of requiring a bail payment for a defendant to be freed from custody, the zero-bail policy allowed for immediate citation and release before an arraignment.
What is Section 438 of the Criminal Code?
Fraudulent false accounting. (c) omits, or is privy to omitting, any material particular from any such book, document, or account, is guilty of a felony and is liable to imprisonment for seven years.
How to get bail in a non-bailable warrant?
If the Offense is Non-Bailable → You may need to apply for Anticipatory Bail or Regular Bail after Surrendering. If the NBW was issued due to Non-Appearance → You can file an application for Recall of Warrant and Bail.
What are the disadvantages of anticipatory bail?
One of the most significant disadvantages of anticipatory bail is that it can be misused. There have been cases where people have obtained anticipatory bail by providing false information or using their influence. Such cases undermine the legal system's credibility and can lead to a lack of faith in the system.
What does individual liberty allow individuals to do?
Individual liberty
Individual liberty allows people to pursue their own goals and interests, providing they do not harm others. This British value is based on the idea that people should be free to make their own decisions and choices within the bounds of the law, of course.
What is section 438?
Section 438. Direction for grant of bail to person apprehending arrest.
Can anticipatory bail be cancelled?
The same legal framework empowers courts to cancel anticipatory bail granted through such applications under Section 439(2) of the CrPC when circumstances demand such intervention.
What documents are needed for anticipatory bail?
Draft an anticipatory bail application with the help of your advocate with your signature. The application should also include an affidavit that supports it. A copy of the FIR and other relevant documents should be attached. The application must be filed in the appropriate district court.
What are the grounds for rejection of anticipatory bail?
Grounds for rejection of Anticipatory Bail:
- In Economic offences, the accused is not entitled to anticipatory bail[5].
- Granting bail to other accused is not a ground to grant AB to an absconding accused[6].
- When the accused is absconding and declared as a proclaimed offender[7].
How long can anticipatory bail be given?
The court held: - Anticipatory bail, unless expressly limited by the court, remains valid until the conclusion of the trial. - There is no need for the accused to seek regular bail unless specific conditions mandate it.
How many times can we file anticipatory bail?
In India, there is no statutory limit on the number of times an individual may apply for bail whether regular or anticipatory before either the Sessions Court or the High Court. However, each subsequent application should be based on new circumstances or developments in the case.
What is another name for anticipatory bail?
In India, pre-arrest bail is a legal provision that allows an individual to seek bail before the arrest warrant is issued against them. It is also known as anticipatory bail. Indian criminal laws allow a person to get bail in anticipation of an arrest for committing a non-bailable offence.
In what cases will bail be granted?
The court has the discretion to grant or refuse bail based on various factors, including the nature and gravity of the offense, the criminal history of the accused, and the possibility of the accused tampering with evidence or intimidating witnesses.