Anticipatory bail is granted under the provisions of Section 438 of the Criminal Procedure Code. This section itself makes it clear that anticipatory bail can be granted only in a non-bailable offence. There is no provision for granting bail in a bailable offence.
In fact, there is no need for obtaining anticipatory bail in a bailable offence, since regular bail is generally granted as a matter of right in a bailable offence, under the provisions of Section 436 of the Cr.P.C.
In the case of G. Muthuswami v. State of Kerala, 1980 Cri LJ 1021 (Ker), where the petitioner had filed an application for anticipatory bail under S. 438 Cr.P.C. in a case under Sections 427 and 447 of IPC both of which were bailable offences, it was held that as Section 438, Cr.P.C. can be invoked only when a person is accused of a non-bailable offence, the aforesaid application was dismissed being not maintainable.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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