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.
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.