On 5 September 2019, the Supreme Court refused pre-arrest bail to P. Chidambaram in the INX Media Enforcement Directorate matter, holding that anticipatory bail must be exercised sparingly in economic offences, which stand as a class apart — the gravity of the offence, the need for custodial interrogation, and the stage of the investigation weigh against the discretion under Section 438. A digest of the anticipatory-bail holding, its distinction from the regular-bail grant that followed on 4 December 2019, and how the 'class apart' line has since been nuanced by the speedy-trial bail jurisprudence.
On 3 October 2023, the Supreme Court held that the Directorate of Enforcement must furnish the written grounds of arrest to a person arrested under Section 19 of the PMLA as a matter of course and without exception. Merely reading the grounds out, or letting the arrestee read and sign them, does not satisfy Article 22(1) or Section 19(1) — and an arrest made without written grounds, together with the remand that follows, is vitiated. The judgment also censured the ED's clandestine second ECIR, recorded to defeat the anticipatory-bail protection the appellants had just secured, and set aside the contrary High Court view in Moin Akhtar Qureshi. This is the PMLA origin of the written-grounds rule that Prabir Purkayastha later carried across to the UAPA and arrests generally.
The Patna High Court held that where the ED files its prosecution complaint without arresting the accused during investigation, the power to arrest under Section 19 PMLA does not survive cognizance — applying Tarsem Lal.
On 5 February 2025, the Madhya Pradesh High Court granted anticipatory bail in a rape case on condition that the accused surrender all electronic devices and social-media passwords to the investigating agency, raising sharp questions of privacy and self-incrimination.
A five-judge Constitution Bench led by CJI Y.V. Chandrachud freed s.438 anticipatory bail from judge-made fetters, needing no FIR but barring blanket orders.
A five-judge Constitution Bench held that s.438 anticipatory bail need not, as a rule, be time-bound and can survive the charge-sheet, reaffirming Sibbia.
Section 482 of the BNSS replaced Section 438 of the CrPC on 1 July 2024, but did so without reproducing the statutory guiding factors — nature of accusation, antecedents, possibility of fleeing — that the CrPC had attached. A reading of the Chhattisgarh High Court's diagnosis of what this means for the anticipatory-bail discretion, and how trial courts and the bar should approach the post-BNSS framework.