• Anticipatory bail

I live in indirapuram Ghaziabad UP and I afraid that my wife my file criminal case in meerut UP after going to her mother house next week. 
I just want to know if I can take anticipatory bail before the case filing and what will be the procedure.
Asked 4 years ago in Criminal Law
Religion: Hindu

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

14 Answers

Provisions of anticipatory bail is not in UP however we file criminal writ in high court to get stay from arrest .

I can contact me I can help I in that

I am a lawyer at allahabad highcourt

Atul Shahi
Advocate, Allahabad
160 Answers
1 Consultation

4.6 on 5.0

Dear Sir


There is judgment which says even before filing of FIR anticipatory bail can be filed. Read full judggment.


Punjab-Haryana High Court

Gurbaksh Singh Sibia vs State Of Punjab on 13 September, 1977

Equivalent citations: 1978 CriLJ 20

Author: S Sandhawalia

Bench: S Sandhawalia, P C Jain, S Mital

Section 438 applies before the arrest is

made and, in fact, one of the pre-conditions of its application is that the person, who applies for

relief under it, must be able to show that he has reason to believe that "he may be arrested", which

plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or

refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of

which it is possible to show that there appear to be reasonable grounds for believing that the

applicant has been guilty of an offence punishable with death or imprisonment for life. In cases

falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it

would be premature and indeed difficult to predicate that there are or are not reasonable grounds

for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the

court cannot release the applicant on bail is, normally, the credibility of the allegations contained in

the First Information Report. In the majority of cases falling under Section 438, that data will be

lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be

read into the provisions of Section 438, the transplantation shall have to be done without

amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read

as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable

grounds for believing that he has been guilty of an offence punishable with death or imprisonment

for life". In this process one shall have overlooked that whereas, the power under Section 438(1) can

be exercised if the High Court or the Court of Session "thinks fits to do so, Section 437(1) does not

confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs

in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously

absent in Section 437(1). We see no valid reason for re-writing Section 438 with a 409 view, not to

expanding the scope and ambit of the discretion conferred on the High Court and the Court of

Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the

High Court that ancipatory bail cannot be granted in respect of offences like criminal breach of trust

for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances

may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse

anticipatory bail in any case if there is material before it justifying such refusal.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

AB cannot be filed before FIR is filed

2) there is no provisions for AB in UP

3) file petition in HC seeking stay against arrest after filing of FIR

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

See there should be apprehension of arrest then only the Anticipatory bail can be filed so to show that apprehension either any complaint or FIR should be there on record to show that there is enough apprehension for you to seek Anticipatory bail.

Since in UP anticipatory bail is not available under CRPC you have to file a writ before the High Court under article 227 and 226 seek direction for police that it shall not arrest you.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Client,

Apply to District court or High Court u/s 438 CrPC.

Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565, a Constitution bench of the Supreme Court has held that the filing of a First Information Report is not a condition precedent to the exercise of the power to grant anticipatory bail under S. 438 Cr.P.C. and that the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0


You cannot take the anticipatory bail before filing of the complaint.

Anticipatory bail can only be granted in accordance with the sections in which the case will be registered against you and that will be confirmed only and only after the registration of the case.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

If you got the anticipatory bail from the court in that case no arrest will be made by police

Saurav Khullar
Advocate, Mohali
45 Answers

4.0 on 5.0

The supreme court in recent judgement of Arnesh Kumar Vs. State of Bihar has made mandatory compliance of guidelines that all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest .

- For lodging an FIR against you , your wife will have to file a complaint and the notice of the same will be issued to you before the FIR and further you will be given chance to settle the matter in dispute with your wife.

- As per the above Supreme Court judgment , if you are joining the investigation after lodging the FIR against you , police cannot automatically arrest you.

- No come to Anticipatory Bail , There is no provision of Anticipatory bail in U.P like Delhi and some other state.

- If you have apprehension that you may be arrested by the police upon the complaint if any from your wife , then you should file Writ Petition before the High Court for the direction to the police no to arrest you.

Mohammed Shahzad
Advocate, Delhi
9872 Answers
121 Consultations

5.0 on 5.0

you should file a petition uunder section 13 hma i.e for divorce it ll be benefit fr you that your wife file case against you on the counter blast of that petition. Because anticipatory bail is not allowed in up as per state amendment

Tarun Budhiraja
Advocate, Rohtak
379 Answers

4.8 on 5.0

Dear Client,

The provisions of Section 438 Cr.P.C. for anticipatory bail are not applicable in U.P. as a result of which you cannot get anticipatory bail in U.P.

So, you can file a petition for stay on the arrest in High Court which also serves the same purpose.


Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

There is no provision for anticipatory bail in UP state.

So you cannot initiate any such steps even after the complaint is lodged and registered

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

No, You can not apply for Anticipatory Bail as the provision of Anticipatory bail under section 438 of Cr.P.C. is not available in U.P.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

1) Anticipatory bail can be obtained by a person who anticipates arrest. Hence, anticipatory bail is a direction to release a person on bail, even before the person is arrested. Anticipatory bail is applied for under Section 438 of the Criminal Procedure Code.

2) Anticipatory Bail Conditions

While granting anticipatory bail, the Court can impose one or more of the following conditions based on the facts of the particular case:

a) Be available for interrogation by the police officer, as and when required;

b) 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;

c) Person shall not leave India without the previous permission of the court.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

As there is no anticipatory bail Provisions in Uttarakhand Pradesh. You need to file writ petition in HC and quash the FIR after Registration

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer