Section 438 CrPC: Direction for grant of bail to person apprehending arrest

Code of Criminal Procedure, 1973

Section 438 CrPC at a Glance

Section 438 CrPC deals with direction for grant of bail to person apprehending arrest. From 1 July 2024 it is replaced by Section 482 BNSS. Popularly called anticipatory bail. The rule is unchanged; Section 482(4) BNSS names Sections 65 and 70(2) BNS where the CrPC named the IPC rape sections.

Now BNSS

Section 482 →

What Section 438 CrPC Says

438. Direction for grant of bail to person apprehending arrest

(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, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued 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).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).

Source: Section 438, Code of Criminal Procedure, 1973

Section 438 CrPC in Simple Words

Section 438 of the Code of Criminal Procedure, 1973 applies to a person who has reason to believe that the person may be arrested on an accusation of having committed a non-bailable offence. That person may apply to the High Court or the Court of Session for a direction under Section 438 CrPC. That Court may, if it thinks fit, direct that in the event of such arrest the person shall be released on bail. In making the direction, the Court may add conditions as it thinks fit, in the light of the facts of the particular case. The conditions may include a requirement to be available for interrogation by a police officer as and when required.

They may include a bar on making any inducement, threat or promise, directly or indirectly, to a person acquainted with the facts of the case. That bar applies where the inducement, threat or promise is made so as to dissuade the one acquainted with the facts from disclosing those facts to the Court or to any police officer. They may include a bar on leaving India without the previous permission of the Court. They may also include any other condition that may be imposed under section 437(3) of the Code, as if the bail were granted under that section. Suppose the person is later arrested without warrant by an officer in charge of a police station on that accusation.

If the person is prepared to give bail, at the time of arrest or at any time while in the custody of that officer, the person shall be released on bail. Suppose a Magistrate taking cognizance of the offence decides that a warrant should be issued in the first instance against the person. The Magistrate shall then issue a bailable warrant in conformity with the direction of the Court under Section 438(1) CrPC. Section 438 CrPC does not apply to a case involving arrest on accusation of an offence under section 376(3), section 376AB, section 376DA or section 376DB of the Indian Penal Code.

Who Can Use Section 438 CrPC

  • Any person who has reason to believe that they may be arrested on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Session for a pre-arrest bail direction under Section 438(1) of the Code of Criminal Procedure, 1973.
  • Upon receiving the application, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest the applicant shall be released on bail.
  • When making a direction under Section 438(1) CrPC, the High Court or the Court of Session may, as it may think fit in the light of the facts of the particular case, attach conditions requiring the person to be available for police interrogation, not make any inducement, threat or promise to persons acquainted with the facts, not leave India without prior court permission, or obey any condition permitted under Section 437(3) CrPC.
  • If an officer in charge of a police station subsequently arrests that person without warrant on the same accusation under Section 438(3) CrPC, the person shall be released on bail if prepared to give bail at the time of arrest or at any time while in the custody of that officer.
  • If a Magistrate taking cognizance of the offence decides that a warrant should be issued in the first instance against the protected person, the Magistrate shall issue a bailable warrant in conformity with the court direction under Section 438(1) CrPC.

Example of Section 438 CrPC

Arjun has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. He applies to the Court of Session under Section 438(1) of the Code of Criminal Procedure, 1973. The Court thinks fit to direct that in the event of such arrest Arjun shall be released on bail, with a condition under Section 438(2)(i) CrPC to remain available for interrogation by a police officer as and when required. When the officer in charge of the police station later arrests Arjun without warrant on that accusation and Arjun is prepared to give bail at the time of arrest, he shall be released on bail under Section 438(3) CrPC.

When Section 438 CrPC Does Not Apply

  • Section 438 of the Code of Criminal Procedure, 1973 does not apply to any case involving the arrest of any person on an accusation of having committed an offence under Section 376(3), Section 376AB, Section 376DA, or Section 376DB of the Indian Penal Code.
  • A person cannot apply for a direction under Section 438(1) CrPC when the accusation does not concern having committed a non-bailable offence or when the person has no reason to believe that they may be arrested on such an accusation.
  • An application for a pre-arrest bail direction under Section 438(1) CrPC cannot be entertained by a court other than the High Court or the Court of Session.
  • Release on bail by the arresting officer under Section 438(3) CrPC does not take effect if the person arrested without warrant is not prepared to give bail either at the time of arrest or while in the custody of that officer.

Anticipatory Bail Under BNSS 482: What Changed

Section 438 CrPC is now covered under Section 482 BNSS.

Section 438 of the Code of Criminal Procedure, 1973 became Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024, with no new sub-sections added. The rule in Section 482(1) BNSS, Section 482(2)(i) BNSS to Section 482(2)(iii) BNSS, and Section 482(3) BNSS is unchanged. Replacing Section 437(3) CrPC with Section 480(3) BNSS in Section 482(2)(iv) BNSS is a change of form. Section 482(4) BNSS replaces the Indian Penal Code references to Section 376(3), Section 376AB, Section 376DA, or Section 376DB with Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, 2023.

View detailed comparison (CrPC 438 vs BNSS 482) →

FAQs on Section 438 CrPC

Which courts can grant a direction for release on bail to a person apprehending arrest under Section 438 CrPC?▼

Only the High Court or the Court of Session has the power to grant a direction under Section 438(1) of the Code of Criminal Procedure, 1973. A person who has reason to believe that they may be arrested on an accusation of having committed a non-bailable offence may apply to either of those courts. That Court may, if it thinks fit, direct that in the event of such arrest the person shall be released on bail.

What conditions can the court include when granting a direction under Section 438 CrPC?▼

The High Court or the Court of Session may include such conditions as it may think fit in the light of the facts of the particular case under Section 438(2) of the Code of Criminal Procedure, 1973. These include conditions that the person shall remain available for police interrogation as and when required, shall not make any inducement, threat or promise to persons acquainted with the facts, shall not leave India without prior court permission, and any other condition under Section 437(3) CrPC.

How is a direction under Section 438 CrPC carried out if the police arrest the person or a Magistrate takes cognizance?▼

If an officer in charge of a police station thereafter arrests the person without warrant on that accusation, the person shall be released on bail if prepared to give bail at arrest or while in custody under Section 438(3) of the Code of Criminal Procedure, 1973. If a Magistrate taking cognizance of the offence decides to issue a warrant in the first instance, the Magistrate shall issue a bailable warrant in conformity with the direction under Section 438(1) CrPC.

In which cases is a pre-arrest bail direction barred under Section 438(4) CrPC?▼

Section 438(4) of the Code of Criminal Procedure, 1973 states that nothing in Section 438 CrPC shall apply to any case involving the arrest of any person on an accusation of having committed an offence under Section 376(3), Section 376AB, Section 376DA, or Section 376DB of the Indian Penal Code. A person accused of any of these specified Indian Penal Code offences cannot seek a direction for release on bail under Section 438 CrPC.

Which provision of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 438 CrPC?▼

The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. From 1 July 2024, Section 438 CrPC corresponds to Section 482 BNSS, with Section 438(1), Section 438(2), Section 438(3), and Section 438(4) CrPC mapping to Section 482(1), Section 482(2), Section 482(3), and Section 482(4) BNSS respectively.

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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 27 Oct 2026 ·