According to Section 438 of the Code of Criminal Procedure 1973,
Direction for grant of bail to person apprehending arrest — (1) any person has reason to believe that he may be arrested on accusation of committed a non-boilable offence, he may apply to the High Court or the Co Session for a direction under this section that in the event of such arrest he s released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely.
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuri humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehend such application.
(1A) Where the Court grants an interim order under sub-section (1), is forthwith cause a notice being not less than seven days notice, together with a copy such order to be served on the Public Prosecutor and the Superintendent of police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory. the time of final hearing of the application and passing of final order by the Court on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice].
(2) When the High Court or the Court of Session makes a direction under sit section (1), it may include such conditions in such directions in the light of the fact. 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 IX 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 police station on such accusation, and is prepared either at the time of arrest or at and time while in the custody of such officer to give bail, he shall be released on bail; am if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformation 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).]
Uttar Pradesh — Section 438 of the Code shall be omitted.-vide U.P. Act 16 of 1976. S. 9. (w.e.f. 28-11-1975).