CrPC Section 438
Section 438 of the Criminal Procedure Code (CrPC), 1973 (India):
Section 438 CrPC – Direction for Grant of Pre-Arrest Bail
What is Section 438 about?
This section gives **protection to a person who anticipates arrest on accusation of having committed a non-bailable offense.
The person can apply to the High Court or Sessions Court for an order of “anticipatory bail”, which means they seek bail in anticipation of arrest, to avoid being taken into custody.
Key Features:
Applies to non-bailable offenses (serious offenses where bail is not a right).
The court can grant bail in advance, so if the police try to arrest the person, they must release them on bail.
The court can impose conditions to ensure the person does not evade investigation or tamper with evidence.
The order can be granted even before any formal arrest is made.
Purpose:
To protect individuals from unlawful or malicious arrests.
To safeguard personal liberty and prevent harassment by the police.
To ensure fair treatment even before arrest.
How does it work?
Person files an application under Section 438 before the High Court or Sessions Court.
The court examines the case — evidence, nature of the offense, likelihood of arrest.
If convinced, the court grants anticipatory bail with or without conditions.
When police attempt arrest, the accused shows the bail order and is released.
Important Points:
The bail can be cancelled if the person misuses the liberty.
Courts often balance between protecting liberty and ensuring investigation is not hampered.
Anticipatory bail is not automatic — it’s granted based on facts and circumstances.
Summary:
Section 438 CrPC allows a person to get bail ahead of arrest in serious cases to protect their liberty and prevent unlawful detention.
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