Jitendra Chauhan College of Law,

Mumbai

Code of Criminal
Procedure
Object of Anticipatory Bail

Submitted to Submitted by
Prof. Archana Shrivastava Hiren Raja
Class: TY L.L.B
Div / Roll no – A 041

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ACKNOWLEDGEMENT
I am overwhelmed in all humbleness and gratefulness to acknowledge my depth to all those
who have helped me to put these ideas, well above the level of simplicity and into something
concrete.
I would like to express my special thanks of gratitude to my teacher Prof. Archana
Shrivastava, , Professor, Law who gave me the golden opportunity to do this wonderful
project on the topic "Object of Anticipatory Bail”, which also helped me in doing a lot of
Research. I am thankful to them.

Any attempt at any level can't be satisfactorily completed without the support and guidance of
my parents and friends. I would like to thank my parents who helped me a lot in gathering
different information, collecting data and guiding me from time to time in making this project,
despite of their busy schedules, they gave me different ideas in making this project unique.

Hiren Paresh Raja

TY L.L.B A 041
Jitendra Chauhan College of Law

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Table of Contents
Introduction ............................................................................................................................ 4
Sope of Anticipatory Bail....................................................................................................... 4
Breakdown of the meaning of anticipatory bail under Section 438 CrPC ............................. 5
Circumstances when anticipatory bail cannot be filed. .......................................................... 7
Object of Anticipatory Bail .................................................................................................... 8
Important Case Laws .............................................................................................................. 9
Recent developments around anticipatory bail .................................................................... 10
Conclusion............................................................................................................................ 10
References/Bibliography ...................................................................................................... 10

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Introduction
Consider a scenario where ‘A’ has committed a non-bailable offence and he is aware that he
can get bail before he gets arrested. The Indian criminal law system provides an individual
under Chapter XXXIII of the Code of Criminal Procedure, 1973, three kinds of bail: regular,
interim, and anticipatory. Therefore, if ‘A’ wants to seek bail before getting detained, then ‘A’
may invoke one of the most significant defences of personal liberty defined under Section
438 of the Code of Criminal Procedure, that is, anticipatory bail. If a person believes they are
likely to be arrested on non-bailable charges, they can move to the Court of Session or the High
Court for anticipatory bail. Anticipatory bail is a type of pre-arrest bail, and the court’s
authority to grant anticipatory bail is discretionary.

Section 438 is a procedural provision that addresses the right to personal liberty and the
presumption of innocence.

Sope of Anticipatory Bail

Section 438 primarily addresses pre-arrest bail for non-bailable offences. A person
apprehended for arrest may apply to the Court of Session or High Court for a direction to be
released on bail. The power to grant anticipatory bail is ultra vires for the lower courts. Section
438(1A) of the Criminal Procedure (Amendment) Act, 2005 deals with the following factors
that the court considers before granting anticipatory bail:

1. The nature and gravity of the accusations.

2. The charge levelled against the applicant intends to harm or humiliate him by having
him detained.
3. The applicant’s record, including whether he has previously been imprisoned or
sentenced by a court for any cognizable offences
4. The potential of the applicant to defy justice.
If the High Court or Court of Session has not issued an interim order or has rejected the
application for anticipatory bail, an officer in charge of a police station may arrest the applicant
without a warrant based on the accusation included in the application. When a court provides
an interim order, the applicant is required to submit a seven-day notice to the public prosecutor,
and the application is only approved or refused after addressing it.

According to Section 438(1B), the applicant for anticipatory bail is obligatory when the court
adjudicates the case and issues a final hearing of the application or passing of final order by
the court. Upon the public prosecutor’s plea, if the court determines that such attendance is
required in the interest of justice, then the applicant must appear in court.

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Breakdown of the meaning of anticipatory bail
under Section 438 CrPC
In accordance with Section 438, a person who anticipates being arrested may be granted
anticipatory bail for non-bailable offences prior to a First Information Report (FIR) being
lodged. When an individual is arrested, they must apply for regular bail or interim bail,
depending on the situation. Anticipatory bail is the direction to release a person on bail even
before arrest.

Conditions that may be imposed by the court while granting

anticipatory bail.
• That individual makes himself accessible for questioning by a police officer when
required.
• That individual must provide the local police station with their current residence
address, native address, and phone number.
• That the individual will not offer any inducement, threat, or assurance to any person
familiar with the facts of the case, directly or indirectly, to prevent him from disclosing
such information to the court or any police officer.
• That the individual will not leave the territory of India without prior authorization from
the court.
• Any other additional condition under Section 437(3) may be imposed as if the bail was
granted under that Section.
In a landmark judgement, Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the
Hon’ble Supreme Court ruled that an individual must have reasonable grounds to apply for
anticipatory bail to apprehend the arrest and that “reason to believe” means the apprehension
must be established on reasonable grounds and not just a mere “belief” or “fear”.

Power vested to the courts for granting bail for non-bailable

offences under Section 437 CrPC
Section 437 addresses the circumstances under which bail may be granted in the case of a non-
bailable offence. An accused or suspected person may be released on bail if they are charged
with a non-bailable offence, are arrested, or held without a warrant by a police officer, or appear
in court before a court other than the High Court or Court of Session subject to the following
conditions:

1. Such a person should not be released if there are substantial reasons to believe that he
has committed an offence punishable by death or life imprisonment.

2. If the offence is a cognizable offence and he has previously been convicted of an

offence punishable with death, life imprisonment, or imprisonment for seven years or

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 more, or he has previously been convicted on two or more occasions of a non-bailable
and cognizable offence, the court may direct that such a person be released on bail.

3. If the person is under the age of sixteen years, is a woman, is sick, or is infirm.

4. If a person is to be released on bail, it is determined that it is proper to do so for any

other reason.

5. That the witness may be called upon to identify the accused individual during an inquiry
and it should not be a sufficient basis for refusing to grant bail if he is otherwise eligible
for bail and offers an assurance to comply with any orders made by the court.

At any point during the investigation, inquiry, trial, or as the case may be, if it appears that the
accused has committed a non-bailable offence but there are adequate grounds for additional
questioning by any officer or court into his guilt, or there are no reasonable grounds for
believing, the accused shall be subjected to the provisions of Section 446A and, till the pending
of such inquiry, the court or officer may decide to release the accused without sureties or on
bail, depending on the circumstances.

A person may be granted bail under subsection (1) of Section 437 if the accused is suspected
of committing an offence punishable by imprisonment for up to seven years or more, an offence
under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, 1860 or by
conspiring to commit, or abetting in the commission of, any offence. The court may impose
any conditions as follows:

1. To ensure that such a person attends in accordance with the terms of the bond issued.

2. To guarantee that such a person does not conduct an act similar to the offence for which
he is accused or suspected of committing.

3. In the interest of justice

When an officer or a court releases a person on bail under subsection (1) or subsection (2), they
must record in writing the exceptional reasons for doing so.

Any court that has released a person on bail under sub-section (1) or (2) may, if it deems it
appropriate, order that such person be arrested and confined into custody.

When the trial of a person accused of any non-bailable offence triable by a Magistrate is not
addressed within sixty days of the first date fixed for taking evidence in the case, such person
shall, if he is in custody during the entire period, be released on bail to the satisfaction of the
Magistrate, with reasons to be recorded in writing or unless the Magistrate directs otherwise.
If the court believes that there are reasonable grounds to believe that the accused is not guilty
of any offence at any time after the conclusion of a person’s trial for a non-bailable offence but
before judgement is delivered, it shall release the accused, if he is in custody, upon his
execution of a bond without sureties for his appearance to hear judgement delivered.

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Cancellation of anticipatory bail under Section 439 CrPC
Section 439 deals with the extraordinary powers of the High Court or Court of Session
regarding bail. A High Court or Court of Session has the power to order the arrest and custody
of any individual who has been granted bail under Section 439(2). A High Court or Court of
Session may order-

1. Any accused person of an offence who is in custody must be released on bail if the
nature of the offence is stated in Section 437(3) or may impose any condition that it
deems necessary for the purposes listed in that subsection.

(b) Any restriction that a magistrate imposed on a person’s release on bail may be lifted or
changed, on the condition that the High Court or Court of Session notifies the Public Prosecutor
of the application for bail and provides written notice of the reasons for doing so before
releasing an accused on bail who can only be tried by the Court of Session or carries a sentence
of life imprisonment.
In the case of Charu Soneja v. State (Nct Of Delhi) (2022), the Delhi High Court defined the
difference between a dismissal of a bail application and a cancellation of bail. The Court has
opined that it is within its discretion to dismiss a bail order for non-bailable offences. It can be
rejected simply because of the nature of the offence and the possibility that the accused will
abuse his or her liberty if granted. In the case of cancellation of the bail application, the court
has the authority to rescind the previously granted liberty. The Court justified its conclusion by
citing the case of Delhi Admn. v. Sanjay Gandhi (1978) and stating:

“The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion,
without dwelling on the merits of whether bail should have been granted or not and only upon
viewing the subsequent conduct of an accused. The power is coupled with the reserve and
caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.”

Circumstances when anticipatory bail cannot be

filed.
1. For In the case of Ramesh v. State (2022), the Karnataka High Court ruled that an
accused person who appears in court, whether through a lawyer or in person, cannot
seek anticipatory bail.

2. An individual who commits an offence under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 cannot apply for anticipatory bail under
Section 438 of the Code of Criminal Procedure, 1973 as per the provision of Section
18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2018, incorporated Section 18A, which clarified that it is not necessary to conduct
a preliminary investigation before filing a First Information Report against a person,
and the provision of Section 438 shall not be applicable under this Act unless any court
passes any judgement, order, or direction. However, the Chhattisgarh High Court in the
case of Jawed Khan v. the State of Chhattisgarh (2022) ruled that if the offence seems
to be an abuse of the law, anticipatory bail can be granted. The Kerala High Court held
in the case of K. M. Basheer v. Rajani K.T & Ors and Connected Cases (2022), that

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 only the Special Court or the Exclusive Special Court established under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can entertain
applications for anticipatory bail. It further ruled that the High Court lacks both
concurrent and original jurisdiction under Sections 438 and 482 of the Criminal
Procedure Code to grant bail for offences under the aforementioned Act. The High
Court’s appeal authority under Section 14A will apply to the decision of whether to
grant or deny anticipatory bail.
3. The Supreme Court ruled in Directorate of Enforcement v. Ashok Kumar Jain (1998)
that an accused person is not entitled to anticipatory bail when charged with an
economic offence.
4. Except in cases when the court is immediately persuaded thsat the charge against the
defendant appears to be false or groundless, Section 438 discretion cannot be applied
to offences with the punishment of death or life imprisonment.

Object of Anticipatory Bail

Liberty’ is most precious of all the human rights. One realizes the value of ‘Liberty’ only when
he is deprived of it. In fact, the Bail is legal restriction over personal liberty. As observed by
Hon’ble Apex Court in case of Sanjaychandra v/s CBI, reported in 2012 AIR (SC) 830, the
main object of bail is…

Following are the the other object of anticipatory bail, in detail, encompasses several
important aspects of criminal justice and individual rights.

a. Protection of Personal Liberty: One of the primary objectives of anticipatory bail is

to protect an individual's personal liberty. It ensures that an accused person is not
subjected to arbitrary arrest, which could lead to deprivation of liberty without just
cause.

b. Preventive Measure: Anticipatory bail acts as a preventive measure against the

possibility of false or frivolous charges. It allows individuals to seek protection against
imminent arrest when they have a reasonable apprehension that they may be implicated
in a non-bailable offense.

c. Presumption of Innocence: Anticipatory bail is consistent with the legal principle that
individuals are considered innocent until proven guilty. It allows the accused to
maintain their freedom until proven guilty in a court of law.

d. Preventing Harassment and Abuse: By seeking anticipatory bail, individuals can

protect themselves from potential harassment, abuse, or coercive tactics by law
enforcement agencies. It acts as a safeguard against wrongful detention and abuse of
power.

e. Facilitating Cooperation with Legal Proceedings: Anticipatory bail does not exempt
the accused from cooperating with the legal process. It ensures that individuals can

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 participate in the investigation and trial while remaining free, thus facilitating a fair and
transparent legal process.

f. Protection of Reputation: Being accused of a crime, especially a non-bailable offense,

can have severe repercussions on an individual's reputation. Anticipatory bail helps in
preserving the accused person's reputation during the legal proceedings.

g. Balancing the Interests of Justice: Anticipatory bail strives to strike a balance

between protecting the rights and liberty of the accused and the interests of justice. It
acknowledges that some individuals may have legitimate reasons to fear arrest even if
they intend to cooperate with the legal process.

h. Ensuring Fair Trials: By allowing the accused to remain free until proven guilty,
anticipatory bail contributes to the fairness of trials. It helps ensure that evidence is
presented in a transparent and unbiased manner, as opposed to situations where the
accused is under duress.

i. Legal Remedies and Judicial Oversight: Anticipatory bail is a legal remedy that
empowers individuals to seek protection through the judicial system. The court, in
granting anticipatory bail, can impose conditions to ensure that the accused does not
evade the legal process or tamper with evidence.

j. Preventing Arbitrary Arrests: Anticipatory bail acts as a check on arbitrary arrests

by requiring law enforcement agencies to provide compelling reasons for arresting an
individual accused of a non-bailable offense.

Important Case Laws

In the case of Ankit Bharti v. State of Uttar Pradesh (2020), the Allahabad High Court held
that although the High Court and Court of Session have concurrent authority, it is conventional
to approach the Court of Session first and subsequently the High Court if the application is
denied. Applications can be submitted directly to the High Court when the reasoning is solid,
logical, and compelling.

In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court ruled that
no time restriction may be placed while granting anticipatory bail and that it can last till the
completion of the trial.

In the case of Subrata Roy Sahara v. Pramod Kumar Saini (2022), the Supreme Court ruled
that inquiries in anticipatory bail applications must be limited to the applicant’s case and
relevant information. It cannot be impleaded against third parties as it would be in violation of
Order 1 Rule 10 of the Code of Civil Procedure, 1908.However, the damages can be claimed.

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Recent developments around anticipatory bail
1. A Gujarat High Court Bench in the case of Shree Vikas Co.Op. Bank Ltd. v. State Of
Gujarat (2022) outlined the law pertaining to the revocation of anticipatory bail has
been presented in an illustrative and not comprehensive manner. The Court ruled that
bail can be revoked if-

a. The accused abuses his liberty by engaging in similar criminal activity.

b. Hampers the process of the investigation.
c. Attempts to interlope with evidence or witnesses.
d. Threatens witnesses or engages in similar activities that would impede a smooth
investigation.
e. There is a risk of him fleeing to another country, or
f. Attempts to make himself scarce.

2. The Gujarat High Court asserted in the case of Mansi Jimit Sanghavi v. State of
Gujarat (2022) that a person facing arrest can seek “transit anticipatory bail” in order
to obtain time to approach the competent court with territorial jurisdiction in the matter,
even though no FIR has been lodged.

3. The Allahabad High Court ruled in the case of Manish Yadav v. State of Uttar Pradesh
(2022) that an anticipatory bail plea is permissible if a proclamation under Sections 82
and Section 83 of the Code of Criminal Procedure, 1973 is made against the accused
after the plea is filed.

4. The Punjab and Haryana High Court stated in the case of Deen Mohd. v. State of
Haryana (2022) that it is well-established law where a process is “ex debito justitiae,”
which means “by reason of an obligation of justice”, the Court can dismiss an
anticipatory bail based only on the insinuation that the defendant attempted to deceive
the Court by withholding information.

5. In the case of Vijay Babu v. State of Kerala & Anr (2022), the Kerala High Court ruled
that anticipatory bail applications can be allowed even if the accused is in another
country.

Conclusion
In conclusion, the objects of anticipatory bail are to uphold fundamental principles of justice,
individual rights, and the rule of law within the context of criminal proceedings. Anticipatory
bail serves as a legal safeguard that seeks to prevent arbitrary arrests, protect personal liberty,
and ensure a fair and transparent legal process. It also acts as a preventive measure against false
or frivolous charges, safeguarding individuals from potential harassment and abuse by law
enforcement agencies. The presumption of innocence until proven guilty is maintained, and
cooperation with legal proceedings is encouraged. Anticipatory bail helps in maintaining an
individual's reputation during the legal process and balances the interests of justice. Overall, it

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is a legal remedy that promotes fairness, transparency, and the protection of individual rights
within the criminal justice system.

References/Bibliography
Online Sources
• https://www.livelaw.in/pdf_upload/transit-bail-referred-to-full-bench–417240.pdf
• https://www.livelaw.in/pdf_upload/gujarat-high-court-417477.pdf
• https://www.writinglaw.com/what-is-blanket-
order/#:~:text=Meaning%20of%20Blanket%20Order.,for%20a%20non%2Dbaila
ble%20offence.
• https://www.livelaw.in/news-updates/no-bar-entertaining-anticipatory-bail-plea-
proclamation-8283crpc-issued-during-pendency-allahabad-high-court-
204505#:~:text=The%20Allahabad%20High%20Court%20has,P.C.%20is%20iss
ued.
• https://repositorio.ual.pt/bitstream/11144/5040/1/0%20EN-vol12-n1-
art14.pdf https://blog.finology.in/criminal-law/anticipatory-bail-under-crpc
• https://corporate.cyrilamarchandblogs.com/2021/01/decoding-the-law-on-
anticipatory-bail/
• http://dspace.cusat.ac.in/jspui/bitstream/123456789/11025/1/Genesis%20of%20th
e%20Concept%20of%20Anticipatory%20Bail.PDF
• https://www.indialegallive.com/constitutional-law-news/supreme-court-
news/anticipatory-bail-inching-towards-article-21/

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