Anticipatory Bail (Section 438)

The Supreme Court (SC) in Sushila Aggarwal v. State of NCT of Delhi (2020)

case delivered a significant verdict, ruling that no time limit can be set while
granting anticipatory Bail and it can continue even until the end of the trial. The
Court made reference of India’s freedom movement claiming that arbitrary
arrests, indefinite detentions, and lack of institutional safeguards played an
important role in rallying the people to raise the demand for Independence.

Bail and its Types

 Definition: Bail is the conditional/provisional release of a person held
under legal custody (in matters which are yet to be pronounced by the Court),
by undertaking a promise to appear in the Court as and when required. It
signifies a security/collateral deposited before the Court for release.
 In Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy
Choudhry (1973) case, the Calcutta High Court explained the principle
behind giving Bail.

Types of Bail in India:

o Regular Bail: It is a direction given by the Court (any Court within

the country) to release a person who is already under arrest and kept in
police custody. For such Bail, a person can file an application
under Section 437 and 439 of the CrPC.
o Interim Bail: Bail granted for a temporary and short period by
the Court till the application seeking Anticipatory Bail or Regular Bail
is pending before a Court.
o Anticipatory Bail: A direction issued to release a person on Bail
even before the person is arrested. In this situation, there
is apprehension of arrest and the person is not arrested before the Bail is
granted. For such Bail, a person can file an application under Sec. 438 of
the Code of Criminal Procedure (CrPC). It is issued only by
the Sessions Court and High Court.
 Section 438 of the CrPC lays down the provisions on anticipatory Bail:
 o Sec. 438(1): When any person anticipates that he/she may get
arrested on an accusation of having committed a non-bailable
offence, he/she may apply to the High Court or the Court of Session for a
direction under this Section. The Court may direct (if it thinks fit) that in
the event of such arrests, he/she shall be released on Bail even before an
arrest is made without subjecting him/her to further restraints.
o Sec. 438(2): When the High Court or the Session Court makes a
direction under Sec. 438(1), it may lay down certain conditions in the
light of the facts of the particular case, as it may think fit.

Historical Background
 Anticipatory Bail became part of the CrPC in 1973 after the 41st Law
Commission Report (1969) recommended for the inclusion of such
provision. It was included to protect the arbitrary violation of the right to
personal liberty of the person.
 Necessity:
o Sometimes influential persons try to implicate their rivals in false
cases for the purpose of disgracing them or for other purposes by getting
them detained in jail.
o Apart from false cases, when there are reasonable grounds for
believing that a person accused of an offence is not likely to abscond or
misuse his liberty while on Bail, then there is no need to first submit him
to custody, make him/her remain in prison and then apply for Bail. In
such cases, Bail could be granted earlier.
o As arbitrary arrests (often leading to harassment and humiliation of
citizens) continue to be a pervasive phenomenon in the country,
therefore, the protection to people should be given. And this was the
underlying reason for the enactment of Sec. 438 in the CrPC, which even
received the Parliamentary acceptance as “crucial underpinning to
shield individual’s personal liberty in a free and democratic country.”

Related Cases
 Gurbaksh Singh Sibbia vs State of Punjab (1980) case: SC ruled that
“Sec. 438(1) should be interpreted in the light of Article 21 (protection of life
and personal liberty) of the Constitution.”
o Granting of anticipatory Bail as a matter of right of an
individual should not be limited by time.
o The Court could impose appropriate restrictions on a case-by-
case basis.
 Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: SC
overruled its earlier judgment and held that “granting of anticipatory
Bail should be limited by time.”
 SS Mhetre vs State of Maharashtra & Ors (2010) case: SC held
that “life/duration of an order granting anticipatory Bail could not be
curtailed.”
 Due to such divergent views, the Court had to decide on two questions in
the recent Sushila Aggarwal (2020) case-
o Should there be a fixed time period to seek anticipatory Bail, so as
to enable a person to surrender before the Trial Court and seek for regular
Bail? Also, should the life of anticipatory Bail end at the time of
summoning by the Court?
o Can Courts impose any conditions while granting such Bail or
not?
 Also, recently the SC in the Prathvi Raj Chauhan vs Union of India
(2020) case, observed that provisions of anticipatory Bail (Sec. 438) shall
not apply to the cases under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 2018.

Sushila Aggarwal (2020) Case Judgment

 There is nothing in CrPC that indicates the grant of anticipatory Bail

should be time-bound.
o However, under CrPC, it is discretionary power of the Court
to decide on a case-to-case basis (depending upon the stage at which the
Bail application has moved or prevalence of any peculiar
 circumstances necessitating to limit the tenure) and impose a time
limit while granting pre-arrest Bail.
o Also, this duration primarily does not end after first
summoning by the Court and can continue till the end of the trial period.
 If any Court wants to limit the Bail, it can attach special features or
circumstances warranting the same.
o The Court while granting anticipatory Bail, should examine the
seriousness and gravity of the offence (like nature of the crime, material
placed on records, etc.) to impose any condition on the petitioner, if
necessary.
o The police can reach the Court seeking permission for arrest in
case of breach of such imposed conditions.
 Application for anticipatory Bail could be filed by a person before the
FIR (First Information Report) as soon as the facts make clear there is a
substantial reason for the arrest.
 Appellate jurisdiction to check the correctness of the granted Bail lies
with the superior Court on the request of the investigating agency or the
State.
 The Court remarked that “when Parliament has not thought it appropriate
to curtail the rights of the citizens and the power of Courts in granting
anticipatory Bails, hence, it is not in larger societal interest to curtail such
powers & limit the liberty of citizens. The rights of the citizens are
fundamental and not the restrictions.”
Offences and Anticipatory Bail
 An application for anticipatory Bail can be filed in cases of both bailable
and non-bailable offences. While in the former situation, the Bail is granted
as a matter of right, the grant of Bail in the latter situation is not a matter of
right but a privilege & is at the behest of the discretionary power of the
Court.
 Bailable Offence: Sec. 436 of the CrPC lays down provision for granting
Bail to a person accused of any bailable offence under the IPC.
o Bailable offences are offences or crimes that are not very
serious in nature and include: unlawful assembly (Sec. 144 of CrPC),
payment of bribe during elections, fabrication of false evidence,
 participation in riots, furnishing false information, causing death by
negligence (Sec. 304A), stalking, criminal defamation, etc.
 Non-bailable Offence: Sec. 437 of the CrPC lays down the power of
court to grant Bail to a person accused of committing a non-bailable offence
under the IPC.
o Non-bailable offences are grave and serious offences which
include: sedition, waging or attempting to wage war against the
government, counterfeiting of Indian currency, murder (Sec.
302), dowry death (Sec. 304B), abetment of suicide, trafficking of a
person, rape (Sec. 376), etc.

Factors & Conditions for Granting Anticipatory Bail

 The anticipatory Bail is granted on the basis of the following factors:

o Nature and gravity of the accusation.
o Applicant’s possibility of fleeing from justice.
o Previous cases against the applicant including any previous
convictions or cases of a cognizable offence.
 Cases of Bailable Offence:
o If there are sufficient reasons to believe that the accused has not
committed the offence.
o As per the Court, if there are sufficient reasons to conduct further
enquiry into the matter.
o If the person is not accused of a crime which is punishable by
death, life imprisonment, or imprisonment up to 10 years or more.
 Cases of Non-bailable Offence:
o If the accused is a woman or child,
o If there is a lack of adequate evidence,
o If there is a delay in registering the FIR by the complainant,
o If the accused is physically or gravely sick,
 o If there is corroboration about personal animosity between accused
and complainant.

Conditions Imposed by Court

 Person shall not leave the country and travel abroad without the prior

permission of the Court.
 If a Court rejects the anticipatory Bail a person, he/she can
be arrested by the police without a warrant.
 Person shall make himself available for interrogation by a police officer
(as and when required).
 Person shall not (directly or indirectly) make any inducement,
interference, 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 or to any
police officer.

Cancellation of Anticipatory Bail

 Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory
Bail. They imply that a Court which has the power to grant anticipatory Bail is
also empowered to cancel the Bail or recall the order related to Bail upon
appropriate consideration of facts.
 A High Court or Court of Session may direct that any person who has been
released on Bail by it- be arrested, and brought under custody after filing of an
application by the complainant or the prosecution.
o However, a Court does not have the power to cancel the Bail
granted by the police officer.
Over the years, anticipatory Bail has acted as the protection (granted under Sec.
438 of CrPC) to safeguard a person against whom false accusation or charges have
been made. It ensures the release of such falsely accused person even before they
are arrested.