ANTICIPATORY BAIL

(Section 438 CrPC)

S.S. Upadhyay
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Former Legal Advisor to Governor
Raj Bhawan, Uttar Pradesh, Lucknow
Mobile : 9453048988
E-mail : ssupadhyay28@gmail.com
Website: lawhelpline.in

1. Object of anticipatory bail: Object of anticipatory bail provided by

Section 438 CrPC is to safeguard the personal liberty of the
individual and to protect him from the possibility of being humiliated
and unnecessarily harassed by police by taking him into custody.
However, a delicate balance is required to be established between the
right of personal liberty of an individual apprehending his arrest and
the societal interest. See: P.Chidambaram Vs. Directorate of
Enforcement, AIR 2019 SC 4198

2. Section 438 CrPC as adopted in U.P: The provision under sub-

section (1) of section 438 under the CrPC and the substituted
provision as is applicable in Uttar Pradesh are same. The provision
under sub-section (1A) of the Central Act has been included
verbatim under sub-section (3) of the U.P. Amendment. Likewise
with respect to the conditions as may be imposed at the time of grant
of anticipatory bail, both under the Central Act and the U.P.
Amendment are on similar lines, as provided under sub-section (2) of
both Acts. But with respect to other provisions, included under sub-
section (2), the U.P. Amendment additionally provides that the High
Court or, as the case may be, the Court of Session, at the time of
making an interim order to grant anticipatory bail shall indicate the

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 date, on which the application for grant of anticipatory bail shall be
finally heard. Additionally, the explanation appended to sub-section
(2) of U.P. Amendment provides- "The final order made on an
application for direction under sub-section (1); shall not be construed
as an interlocutory order for the purpose of this Code".

3. Section 438 CrPC as amended in Uttarakhand and approach of

Uttrakhand High Court with regard to anticipatory bail:
Apprehending his arrest, the applicant moved an application for
anticipatory bail before the learned Sessions Judge, Udham Singh
Nagar in connection with FIR No. 79 of 2021, registered with Police
Station Pulbhatta, District Udham Singh Nagar for the offence under
Sections 188, 269, 270, 420 of IPC, Section 3 of the Epidemic
Diseases Act, 1897 and Section 51 (b) of the Disaster Management
Act, 2005. The learned Sessions Judge vide order dated 02.09.2021
rejected the application for anticipatory bail. The scheme of the
Section 438 of the Code of Criminal Procedure is introduced by
the State of Uttarakhand vide Act No. 22/2020. Section 438 of the
Criminal Procedure Code, 1973 reads as follows:
(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may
apply to the High Court or the Court of Session for a direction
under this section that in the event of such arrest he shall be
released on bail; and that Court may, after taking into consideration,
inter alia, 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 has 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 where
the accusation has been made with the object of injuring

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 or humiliating the applicant by having him so arrested, either
reject the application forthwith or issue an interim order for
the grant of anticipatorybail:
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
apprehended in such application.
(2) Where the High Court or, as the case may be, the Court of Session,
considers it expedient to issue an interim order to grant
anticipatory bail under sub-section (1), the Court shall indicate
therein the date, on which the application for grant of anticipatory
bail shall be finally heard for passing an order thereon, as the
Court may deem fit, and if the Court passes any order granting
anticipatory bail, such order shall include inter alia the following
conditions, namely:
(i) that the applicant shall make himself available for interrogation
by a police officer as and when required;
(ii) that the applicant 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 or to any police officer;
(iii) that the applicant shall not leave India without the previous
permission of the Court; and
(iv) such other conditions as may be imposed under subsection
(3) of section 437. as if the bail were granted under that
section.
Explanation: the final order made on an application for
direction under sub- section (1); shall not be construed as an
interlocutory order for the purpose of this Code.
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(3) Where the Court grants an interim order under subsection (l), it
shall forthwith cause a notice being not less than seven days
notice, together, with a copy of 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.
(4) On the date indicated in the interim order under subsection (2), the
Court shall hear the Public Prosecutor and the applicant and after
due consideration of their contentions, it may either confirm,
modify or cancel the interim order.
(5) The High Court or the Court of Session, as the case may be, shall
finally dispose of an application for grant of anticipatory bail under
sub-section (l), within thirty days of the date of such application;
Provisions of this section shall not be applicable,-
(a) to the offences arising out of-
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secrets Act, 1923;
(iv) the Uttarakhand (Uttar Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986;) Adaptation and
Modification Order, 2002
(v) sub-section(3) of Section 376 or Section 376AB or Section
376DA or Section 376DB of the Penal Code, 1860;
(vi) chapter 6 of the Penal Code, 1860, viz, offences against the
state (except Section 129);
(vii) The Protection of Children from Sexual Offences (POCSO)
Act, 2012;
(b) in the offences, in which death sentence may be awarded.
(6) If an application under this section has been made by any person to
the High Court, no application by the same person shall be

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 entertained by the Court of Session.

4. Personal liberty under Article 21 of the Constitution of India is very

precious fundamental right and it should be curtailed only when it
becomes imperative according to the peculiar facts and
circumstances of the case.

5.1. Having considered the submissions of learned counsel for both the
parties and in the facts and circumstances of the case, without
expressing any opinion as to the merit of the case, this court
directs that in the event of arrest, the applicant-accused Aman
Goyal shall be released on bail on furnishing a personal bond of
Rs. 30,000/- with two reliable sureties, each in the like amount to
the satisfaction of the Investigating Officer/Arresting Officer with
the following conditions:
5.2. The applicant shall make himself available at the time of
interrogation by a police officer as and when requires;
5.3. The applicant shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the
case.
It is clarified that if the applicant misuses or violates any of the
conditions, imposed upon him, the Investigating Officer will be free
to move the Court for cancellation of the interim anticipatory bail.
See: Aman Goyal Vs. State of Uttarakhand, 2021 SCC OnLine Utt
1170

6.1. Guidelines of the Constitution Bench of the Supreme Court on

anticipatory bail u/s 438 CrPC as issued in Sushila Aggarwal Vs.
State, (NCT of Delhi), (2020) 5 SCC 1 (Five-Judge Bench): In
paragraph 92, the Constitution Bench of Hon’ble Supreme Court has
issued following guidelines for courts for granting or refusing
anticipatory bail u/s 438 CrPC:

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92. This Court, in the light of the above discussion in the two
judgments, and in the light of the answers to the reference, hereby
clarifies that the following need to be kept in mind by courts,
dealing with applications under Section 438 CrPC:

92.1. Consistent with the judgment in Gurbaksh Singh Sibbia vs. State of
Punjab, when a person complains of apprehension of arrest and
approaches for order, the application should be based on concrete
facts (and not vague or general allegations) reliable to one or other
specific offence. The application seeking anticipatory bail should
contain bare essential facts relating to the offence, and why the
applicant reasonably apprehends arrest, as well as his side of the
story. These are essential for the court which should consider his
application, to evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition that may have
to be imposed. It is not essential that an application should be
moved only after an FIR is filed; it can be moved earlier, so long as
the facts are clear and there is reasonable basis for apprehending
arrest.

92.2. It may b be advisable for the court, which is approached with an

application under Section 438, depending on the seriousness of the
threat (of arrest) to issue notice to the Public Prosecutor and obtain
facts, even while granting limited interim anticipatory bail.

92.3. Nothing in Section 438 CrPC, compels or obliges courts to impose,

conditions limiting relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the police, during
investigation or inquiry, et While considering an application (for
grant of anticipatory bail) the spurt has to consider the nature of the
offence, the role of the person, the likelihood of his influencing the
course of investigation, or tampering with evidence (including
intimidating witnesses), likelihood of fleeing justice (such leaving
the country), etc. The courts would be justified and ought to
impose conditions spelt out in Section 437(3) CrPC [by virtue of
Section 438(2)]. The need to impose other restrictive conditions,
would have to be judged on a case-by-case basis, and depending
upon the materials produced by the State or the investigating
agency. Such special or other restrictive conditions may be
imposed if the case or cases warrant, but should not be imposed in
a routine manner, in all cases. Likewise, conditions which limit the
grant of anticipatory bail may be granted, if they are required in the

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 facts of any case or cases; however, such limiting conditions may
not be invariably imposed.

92.4. Courts ought to be generally guided by considerations such as the

nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while considering whether to
grant anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion equally whether and if so, what kind of special
conditions are to be imposed (or not imposed) are dependent on
facts of the case, and subject to the discretion of the court.

92.5. Anticipatory bail granted can, depending on the conduct and

behaviour of the accused, continue after filing of the charge-sheet
fill end of trial.

92.6. An order of anticipatory bail should not be blanket in the sense that
it should not enable the accused to commit further offences and
claim relief of indefinite protection on arrest. It should be confined
to the offence or incident, for which apprehension of arrest sought,
in relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence.

92.7. An order of anticipatory bail does not in any manner limit or

restrict the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail.

92.8. The observations in Gurbaksh Singh Sibbia vs. State of Punjab,

(1980) 2 SCC 565 regarding limited custody or "deemed custody"
to facilitate the requirements the investigative authority, would be
sufficient for the purpose of fulfilling the provisions of Section 27,
in the event of recovery of an article, of discovery of a fact, which
is relatable to a statement made during such even (i.e. deemed
custody). In such event, there is no question for necessity of asking
the accused to separately surrender and seek regular bail. Sibbia
had observed that: (SCC p. 584, para 19).

19. if and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act
in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. vs. Deoman Upadhyaya.

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 92.9. It is open to the police or the investigating agency to move the
court concerned, which grants anticipatory bail, for a direction
under Section 439(2) to arrest the accused, in the event of violation
of any term, such as absconding non-cooperating during
investigation, evasion, intimidation or inducement witnesses with a
view to influence outcome of the investigation or trial, etc.

92.10. The court referred to in para 92.9 above is the court which
grants anticipatory bail, in the first instance, according to
prevailing authorities.

92.11. The correctness of an order granting bail, can be considered by the

appellate or superior court at the behest of the State or investigating
agency, and set aside on the ground that the court granting it did
not consider material facts or crucial circumstances. (See: Prakash
Kadam vs. Ramprasad Viswanath Gupta: Jai Prakash Singh: State
of U.P. vs. Amarmani Tripathi.) This does not amount to
"cancellation" in terms of Section 439(2) CrPC.

92.12. The observations in Siddharam Satlingappa Mhetre vs. State of

Maharashtra (and other similar judgments) that no restrictive
conditions at all can be imposed, while granting anticipatory bail
are hereby overruled. Likewise, the decision in Salauddin
Abdulsamad Shaikh vs. State of Maharashtra and subsequent
decisions (including K.L. Verma vs. State, Sunita Devi vs. State of
Bihar, Adri Dharan Das vs. State of W.B., Nirmal Jeet Kaur vs.
State of M.P, HDFC Bank Ltd. vs. J.J. Mannan Satpal Single, State
of Punjab and Naresh Kumar Yadav v. Ravindra Kumar) which lay
down such restrictive conditions, or terms limiting the grant of
anticipatory bail to a period of time are hereby overruled. See:
Sushila Aggarwal Vs. State, (NCT of Delhi), (2020) 5 SCC 1
(Five-Judge Bench).

6.2 Law declared by Constitution Bench on anticipatory bail u/s 438

CrPC: A Constitution Bench of the Hon'ble Supreme Court while
considering all the previous leading decisions of the Supreme Court
has clarified the scope of grant or refusal of anticipatory bails by
courts u/s 438 of CrPC as under:
(1) Consistent with the judgment in when a person complains of
apprehension of arrest and approaches for order, the application
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 should be based on concrete facts (and not vague or general
allegations) relatable to one or other specific offence. The
application seeking anticipatory bail should contain bare essential
facts relating to the offence, and why the applicant reasonable
apprehends arrest, as well as his side of the story These are essential
for the court which should consider his application, to evaluate the
threat or apprehension, its gravity or seriousness and the
appropriateness of any condition that may have to be imposed. It is
not essential that an application should be moved only after an FIR
is filed; it can be moved earlier, so long as the facts are clear and
there is reasonable basis for apprehending arrest.
(2) At the time of granting limited interim anticipatory bail depending
on the seriousness of the threat of arrest, it is not advisable to issue
notice to the public prosecutor.
(3) While considering the application for grant of anticipatory bail the
court has to consider the nature of the offence, the role of the
person, the likelihood of his influencing the course of investigation,
or tampering with evidence (including intimidating witnesses),
likelihood of fleeing justice (such as leaving the country), etc. The
courts would be justified- and ought to impose conditions spelt out
in Section 437 (3) CrPC. Other restrictive conditions may also be
imposed if the case or cases warrant but should not be imposed in
routine manner, in all cases.
(4) Whether to grant or not to grant the anticipatory bail is a matter of
discretion; equally the imposition of special conditions are
dependent on facts of the case, and subject to the discretion of the
court.
(5) Anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet till
end of trial.
(6) An order of anticipatory bail should not be "blanket" in the sense
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 that it should not enable the accused to commit further offences and
claim relief of indefinite protection from arrest. It should be
confined to the offence or incident, for which apprehension of arrest
is sought, in relation to a specific incident.
(7) An order of anticipatory bail does not in any manner limit or restrict
the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail.
(8) The observations in Sibbia regarding "limited custody" or "deemed
custody" to facilitate the requirements of the investigative authority,
would be sufficient for the purpose of fulfilling the provisions of
Section 27, in the event of recovery of an article, or discovery of a
fact, which is relatable to a statement made during such event (i.e.
deemed custody). In such event, there is no question (or necessity)
of asking the accused to separately surrender and seek regular bail.
Sibbia (supra) had observed that "if and when the occasion arises, it
may be possible for the prosecution to claim the benefit of Section
27 of the Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released on bail by
invoking the principle stated by this Court. See: State of U.P. Vs.
Deoman Upadhyaya, AIR 1960 SC 1125.
(9) It is open to the police or the investigating agency to move the court
which grants anticipatory bail, for a direction u/s 439 (2) to arrest
the accused in the event of violation of any term, such as
absconding, non-cooperative during investigation, evasion,
intimidation or inducement to witnesses with a view to influence
outcome of investigation or trial, etc.
(10) The correctness of an order granting bail, can be considered and set
aside if necessary by the appellate court on the ground that the court
granting it did not consider material facts or crucial circumstances.
(11) It has been observed that no restrictive conditions at all can be
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 imposed, while granting anticipatory bail has been overruled.
Likewise, the decision in Salauddin Sheikh and subsequent
decisions, which lay down such restrictive conditions, or terms
limiting the grant of anticipatory bail, to a period of time have also
been overruled. See: Sushila Aggarwal Vs State (NCT of Delhi),
AIR 2020 SC 831 (Five-Judge Bench)

6.3 Relevant considerations for grant or refusal of anticipatory bail u/s 438
CrPC: The relevant considerations for grant or refusal of
anticipatory bail u/s 438 CrPC to an individual apprehending his
arrest are as under:
(1) The limitations u/s 437 CrPC is not applicable to the grant of
anticipatory bail u/s 438 CrPC.
(2) On the other hand, the object of using the words 'if it thinks fit' in
section 438 (1) CrPC, which are absent in section 437 (1) CrPC, is
to confer a wide discretion on the High Court and the Sessions
Court to grant anticipatory bail because - (a) it would be difficult to
enumerate the conditions under which anticipatory bail should or
should not be granted; and (b) the intention was to give the higher
courts a somewhat free hand in the grant of relief in the nature of
anticipatory bail. See: Gurubaksh Singh Sibba Vs. State of Punjab,
AIR 1980 SC 1632
(3) It is also for the petitioner to substantiate prima facie that the charge
of serious non- bailable offence is groundless or that it has been
leveled against him mala fide, e.g., for humiliating him. See:
Gurubaksh Singh Sibba Vs. State of Punjab, AIR 1980 SC 1632
(4) Anticipatory bail cannot be denied merely on the ground that the
investigation is yet not complete or that the name of the petitioner
has not been mentioned in the FIR. See: Jagan Vs. State of M.P.
(1978) Cr LJ (NOC) 256 (MP)
(5) Anticipatory bail should be granted as a rule if it is used to oppress
the political opponents or where there is no specific act attributed to
the accused. See: Narinder Vs. State, (1977) CrLJ 596 (P & H)
(6) The power of anticipatory bail exercisable u/s 438 CrPC is
somewhat extra-ordinary and it is only in exceptional cases that it
can be used when it appears that the person may be falsely
implicated in the offence or where there are reasonable grounds for

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 believing that it is not likely to be misused. See: Adri Dharan Das
Vs. State of W.B., AIR 2005 SC 1057 and D.K. Ganesh Babu Vs.
P.T. Manokaran, (2007) 4 SCC 434
(7) The provision of section 438 CrPC should not be applied
mechanically and anticipatory bail should not be granted in every
case by mere asking of the accused. See: Suresh Vs State, 1958
CrLj 1750 (Rajasthan)
(8) An anticipatory bail intrudes in the sphere of investigation of crime.
Some very compelling circumstances have to be made out for grant
of anticipatory bail to the accused involved in serious offences. See:
Pokar Ram Vs. State, AIR 1985 SC 969
(9) It is obligatory for the court to hear the Public Prosecutor before
granting anticipatory bail finally, even though at initial stage interim
order may be passed without hearing the Public Prosecutor.
(10) Reasons must be recorded, though briefly, as to why the
anticipatory bail was being granted. See: State of Maharashtra Vs.
Viswas, (1978) CrLj 1403 (Bombay) (DB).

6.4 Direction of High Court to cancel sale-deed imposed as pre-

condition for anticipatory bail held improper by Supreme Court:
The High Court while allowing an application of the accused seeking
anticipatory bail u/s 438 CrPC directed the accused to comply with
the Condition No. (iii) with regard to cancellation of the registered
sale deed executed by him and return the money received from the
complainant. The said condition is reproduced below:
(iii)“The petitioner/accused shall cooperate in the investigation and
shall furnish all the registered documents before the investigating
authorities and he shall take steps to cancel the registered sale deeds
executed in favour of the vendees within two months from today,
and shall also return the consideration amount received through the
said registered sale deeds within two months from today, failing

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 which, liberty granted to the petitioner shall stand cancelled
automatically and he shall be taken into custody forthwith.”
The Supreme Court held that the High Court ought not to have
imposed the said Condition No. (iii) while granting anticipatory bail
to the accused as it would tantamount to adversely affect the rights
of the parties to the registered documents which can be adjudicated
upon by a Civil Court only. See: Syed Afsar Pasha Quadri Vs. State
of Telangana, 2021 SCC OnLine SC 977

6. Caution of Supreme Court regarding grant of bail during

investigation of crime: Grant of anticipatory bail at the stage of
investigation may frustrate the investigating agency in interrogating
the accused and in collecting the useful information and also the
materials which might have been concealed. Success in such
interrogation would elude if the accused know that he is protected by
the order of the court Grant of anticipatory bail, particularly in
economic offences would definitely hamper the effective
investigation. Having regard to the materials said to have been
collected by the respondent-Enforcement Directorate and
considering the stage of the investigation, we are of the view that it is
not a fit case to grant anticipatory bail See: P.Chidambaram Vs.
E.D., AIR 2019 SC 4198

7. Long relationship of major female with accused entitled the

accused to anticipatory bail: The challenge in the present appeal
before the Supreme Court was to an order passed by the High Court
on 19.05.2022 whereby an application for pre-arrest bail under
Section 438 CrPC for the offences under Sections 376(2)(n), 377
and 506 IPC was dismissed. It was admitted case of the complainant
that she was in a relationship with the appellant for a period of four
years. In view of the said fact, the complainant had willingly been
staying with the appellant and had the relationship. Therefore,
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 now if the relationship is not working out, the same cannot be a
ground for lodging an FIR for the offence under Section 376 (2)(n)
IPC. The Supreme Court made it clear that the observations in the
present order would be only for the purposes of deciding the pre-
arrest bail application. The investigation shall proceed uninfluenced
by the observations made in the present order. See: Ansaar
Mohammad Vs. State of Rajasthan and Another, 2022 SCC OnLine
SC 886.

8. Anticipatory bail granted by Uttarakhand High Court for

offences u/s 304, 201 and 120B IPC: Apprehending his arrest, the
applicant moved an application under Section 438 CrPC seeking
anticipatory bail in the event of his arrest in connection with Case
Crime No. 73 of 2021, registered with Police Station Joshimath,
District Chamoli under Sections 304, 201 and 120B of IPC. Personal
liberty under Article 21 of the Constitution of India is very precious
fundamental right and it should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the
case. Having considered the submissions of learned counsel for both
the parties and in the facts and circumstances of the case, without
expressing any opinion as to the merit of the case, this court directs
that in the event of arrest, the applicant-accused Suraj Singh alias
Suraj Thakur shall be released on bail on furnishing a personal bond
of Rs. 30,000/- with two reliable sureties, each in the like amount to
the satisfaction of the Investigating Officer/Arresting Officer with
the following conditions:—
(i) The applicant shall make himself available at the time of
interrogation by a police officer as and when requires;
(ii) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case.

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 I. List on 16.02.2022 for arguments on the application of anticipatory
bail. Meanwhile, counter affidavit may be filed.
See: Suraj Singh Vs. State of Uttarakhand, 2022 SCC OnLine Utt 65

9. Anticipatory bail granted by Uttarakhand High Court for

offence u/s 304-B IPC: Apprehending his arrest, the applicant-
accused Shiv Lal Arya aged about 60 years had moved an
application for anticipatory bail before the Sessions Judge,
Rudraprayag in connection with the FIR No. 32 of 2021 registered
with Police Station Agustmuni, District Rudraprayag for the offence
under Section 304B of IPC. The learned Sessions Judge,
Rudraprayag vide order dated 10.11.2021 rejected the said
application for anticipatory bail. Present application has been filed
under Section 438 of the Criminal Procedure Code, 1973 seeking
anticipatory bail in the event of his arrest. Personal liberty under
Article 21 of the Constitution of India is very precious fundamental
right and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case. Having
considered the submissions of learned counsel for both the parties
and in the facts and circumstances of the case, this court directs that
in the event of arrest, the applicant-accused Shiv Lal Arya shall be
released on bail on furnishing a personal bond of Rs. 30,000/- with
two reliable sureties of the same amount, to the satisfaction of the
Investigating Officer/Arresting Officer on the following conditions:
The applicant shall make himself available for interrogation by the
Investigating Officer as and when requires;
ii) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of this case. See: Shiv Lal Arya Vs. State of Uttarakhand, 2022
SCC OnLine Utt. 842

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10. Anticipatory bail granted by Uttarakhand High Court for
offence u/s 376, 312, 506 IPC: Apprehending his arrest, the
applicant - accused, namely, Shahnoor alias Shanu Arun has moved
an application for anticipatory bail under Section 438 CrCP seeking
anticipatory bail in the event of his arrest in connection with the FIR
No. 109 of 2022, registered with Police Station Pantnagar, District
Udham Singh Nagar for the offence under Sections 376, 312 and 506
of IPC. The learned counsel for the applicant further argued that
there is no other evidence against the present applicant. Personal
liberty under Article 21 of the Constitution of India is very precious
fundamental right and it should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the
case. Having considered the submissions of learned counsel for both
the parties and in the facts and circumstances of the case, without
expressing any opinion as to the merit of the case, this court directs
that in the event of arrest, the applicant accused Shahnoor alias
Shanu Arun shall be released on bail on furnishing a personal bond
of Rs. 30,000/- with two reliable sureties, each in the like amount to
the satisfaction of the Investigating Officer/Arresting Officer on the
following conditions:
(i) The applicant shall make himself available for interrogation by
the Investigating Officer as and when requires;
(ii) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of this case. See: Shahnoor Vs. State of Uttarakhand and
Others, 2022 SCC OnLine Utt 897

11. Supreme Court granting anticipatory bail for offence u/s 306
IPC: Accused had enjoyed the relief of anticipatory bail granted by
High Court for last more than three and half years and then rejected
the same. Without making any comments on merits of the matter, the

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 Supreme Court set aside the order of the High Court and granted
anticipatory bail to the accused. See: Dheeraj Bhadviya Vs. State of
Rajasthan, (2022) 6 SCC 63

12. Anticipatory bail cannot be denied to accused solely on ground

that arrest of accused is necessary as police were ready to submit
charge-sheet: Arrest of the accused prior to taking charge-sheet on
record is not mandatory as per Section 170 CrPC. Hence,
anticipatory bail cannot be denied to accused solely on the ground
that as police were ready to file charge-sheet, it was mandatory to
arrest the accused, and for that reason, anticipatory bail could not be
granted. Insistence of trial courts on arrest of accused 4 is a pre-
requisite to take the charge-sheet on record is misplaced and contrary
to the very intent of Section 170 CrPC. When police submits charge-
sheet, it is the duty of court to take it on record and consider it in
accordance with law regardless of whether accused has been arrested
or not. This would especially be true in cases where Section 468
CrPC provides for a limitation period within which cognizance of
offence must be taken. Section 170 CrPC does not impose an
obligation on police to arrest each and every accused at the time of
filing of the charge-sheet and therefore, if the IO does not believe
that the accused will abscond or disobey summons, he need not be
produced in custody. See: Siddarth Vs. State of U.P., (2022) 1 SCC
676

13. Anticipatory bail order passed by High Court without

considering nature of allegations against respective accused and
their role set aside by Supreme Court: In the case noted below, the
Kerala High Court while granting anticipatory bail to four accused
persons for the offences punishable u/s 120B, 167, 218, 330, 323,
195, 348, 365, 477A, 506 IPC had made some observations without
considering the individual role played by the respective accused
Page 17 of 38
persons when they were working in the Kerala Police(IB) and
without considering the nature of allegations against them. The
Supreme Court set aside the anticipatory bail granted to the accused
persons and remanded the matter to the High Court to consider the
anticipatory bail applications afresh. From the impugned judgments
and orders passed by the High Court, it appeared that what had
weighed with the High Court was the FIR that was filed after a
number of years after the incident having occurred in 1994.
However, the High Court had not appreciated at all that the FIR was
lodged pursuant to the liberty granted by the Supreme Court in the
judgment and order passed by it in the year 2021 and on the basis of
the recommendations made by the Committee headed by Hon'ble
Mr. Justice D.K. Jain, a former Judge of the Supreme Court.
Therefore, the High Court had failed to appreciate that the present
FIR was registered pursuant to the observations and the directions
issued by the Supreme Court. While granting the anticipatory bail to
the accused persons, the High Court had neither considered the
allegations against the respective accused nor the role played by
them nor the position held by them at the time of registering of the
FIR in the year 1994 nor the role played by them during the
investigation of Crime No. 225/1994/246/1994. In view of the above,
the impugned judgments and orders passed by the High Court
granting anticipatory bail to the accused persons deserved to be
quashed and were set aside and the matters were remitted to the High
Court to consider the anticipatory bail applications afresh and
thereafter to pass appropriate orders in accordance with law and on
their own merits and taking into consideration the observations made
by the Supreme Court. See: Judgment dated 02.12.2022 of the
Hon’ble Supreme Court in Criminal Appeal No. 2147-2149 of 2022
in CBI Vs. P.S. Jayaprakash.

Page 18 of 38
14. Discretionary power of grant of bail u/s 438 CrPC when and how
to be exercised by courts?: The Hon'ble Supreme Court in
deliberating on the various conditions under which the discretionary
power should be exercised by the appropriate court, has laid down
the following guidelines:
(1) The object of anticipatory bail is to protect a person from
unnecessary harassment or humiliation by the investigating agency.
On the other hand, if the court intrudes into the sphere of
investigation of crime without circumspection, faith of the public in
the administration of justice would be completely shaken. Therefore
the court should strike a balance between protection of an individual
from unnecessary humiliation and the faith of the public in the
administration of justice.
(2) Anticipatory Bail is not confined to cases of actual malice. On the
other hand, status in life, affluence or otherwise of the applicant are
not relevant considerations u/s.438.
(3) Since anticipatory bail intrudes into the sphere of investigation, the
court should be circumspect in exercising this power in cases where
a serious crime is alleged against the applicant.
(4) In this regard, it is highly relevant to refer to the observations of the
Constitution Bench, Hon'ble Apex Court held that- "there is no
offence, per se, which stands excluded from the purview of section
438, except the offences mentioned in section 438(4). In other words,
anticipatory bail can be granted, having regard to all the
circumstances, in respect of all offences. At the same time, if there
are indications in any special law or statute, which exclude relief
under section 438(1) they would have to be duly considered." The
court should exercise the discretion, "having regard to the nature of
the offences, the facts shown, the background of the applicant, the
likelihood of his fleeing justice (or not fleeing justice); likelihood of
cooperation or non-cooperation with the investigating agency or

Page 19 of 38
 police etc." The court has also observed that the role of the offender,
circumstances relating to him, his likelihood of subverting justice (or
fair investigation), are also to be considered and in accordance
thereto the court may impose special conditions. See: Sushila
Aggarwal Vs State (NCT of Delhi), AIR 2020 SC 831

15. Presence of accused before court at the time of seeking

anticipatory bail?: With respect to the requirement of presence of
the applicant seeking anticipatory bail, the Central Act, makes it
obligatory only when an application to that effect as per sub-section
(1B) has been made by the Public Prosecutor and the court considers
such presence necessary in the interest of justice. In this regard, the
U.P. Amendment does not make any such provision in express
terms, rather as per sub-section (4), it has been provided "the Court
shall hear the Public Prosecutor and the Applicant and after due
considerations of their contentions, it may either confirm, modify or
cancel the interim order".

16. Presence of accused whether required at the time of hearing on

application for anticipatory bail?: While the Central Act makes
provision under sub-section (3) of Section 438 CrPC with respect to
the right of the applicant, if he is arrested without warrant by an
officer-in-charge of a police station on such accusation, thereby
providing that if the concerned person, is prepared to give ball, he
shall be released on bail. The Central Act also makes provision that
"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 conformity with the direction of the
Court under sub-section (1)" The U.P. Amendment makes no such
provision.

Page 20 of 38
17. Application for anticipatory bail to be decided finally within 30
days: The U.P. Amendment under sub-section (5) of Section 438
CrPC introduced vide Criminal Law (Amendment) Act, 2018, w.e.f.
21.04.2018 provides that the Court concerned shall finally dispose of
an application for grant of anticipatory bail under sub-section (1) of
Section 438 CrPC within 30 days of the date of such application. The
Central Act makes no such provision.

18. Offences wherein anticipatory bail cannot be granted u/s 438

CrPC: Vide Criminal Law (Amendment) Act, 2018, w.e.f.
21.04.2018, a new provision in the form of sub-section (4) has been
added under the Central Act which provides that Section 438 CrPC
shall not apply to any case involving the arrest of any person on
accusation relating to section 376(3) or section 376AB or section
376DA and section 376DB of the IPC. On the contrary, the U.P.
Amendment under sub-section (6), has made provision regarding
non- applicability to the offences arising out of:
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti-Social Activities
(Prevention) Act, 1986.
(b) in the offences, in which death sentence can be awarded.
Lastly, under sub-section (7), the U.P. Amendment makes a
provision, which has not been provided under the Central Act. The
provision as applicable in Uttar Pradesh is as under:
“(7) If an application under this section has been made by any
person to the High Court, no application by the same person shall be
entertained by the Court of Session”.

Page 21 of 38
 19. Which court is competent to entertain application for
anticipatory bail u/s 438 CrPC?: Section 438 CrPC provides that
the accused may apply to the Court of Session or to the High Court,
thereby making it clear that the person concerned has a right to move
either the High Court or the Court of Session and that their
jurisdiction is concurrent. This right cannot be superseded by any
rule of practice that the party must approach the Court of Session
before coming to the High Court. Notably the U.P. Amendment
under sub- section (7) provides that- "if an application under this
section has been made by any person to the High Court, no
application by the same person shall be entertained by the Court of
Session". Thereby meaning, that while, both the courts have
concurrent jurisdiction, but if the applicant in the first instance
chooses to approach the High Court and has accordingly submitted
an application in that court, the Session Court is barred from
entertaining an application by the concerned person.

20. Application for anticipatory bail cannot be ordinarily moved

directly to High Court: The Hon'ble Allahabad High Court has held
that the bail application filed under Section 438 of CrPC is not
maintainable before the High Court without exhausting remedy
before the Court of Sessions, which has got concurrent jurisdiction.
However, for extraneous or special reasons, the High Court can also
exercise such power for grant of the remedy under the said provision.
See: Harendra Singh Vs. State of U.P., Cri.Misc.Application no.
6478/2019(Bail)

21. Guidelines of Allahabad High Court on entertaining applications

for anticipatory bail by High Court and court of Sessions: The
Hon'ble Allahabad High Court in a later decision in elaborately dealing
with the question of concurrent jurisdiction of the High Court and the
Sessions Court has laid down the following legal preposition:
Page 22 of 38
 (1) S.438 on its plain terms does not require a party to first approach
Sessions Court before applying to the High Court for grant of
anticipatory bail.
(2) Notwithstanding concurrent jurisdiction being conferred on the two
courts, strong cogent, compelling and special circumstances must
necessarily be found to exist for the High Court to be approached in
the first instance.
(3) The existence of such factors be left for the court to consider in each
individual matter.
(4) The words "exceptional" or "extraordinary" are understood to mean
atypical, rare, out of ordinary, unusual or uncommon.
(5) Thus an applicant can challenge the order of the Sessions Court in
revision before the High Court, thereby providing him with another
avenue to correct the mistake of the lower court. See: Vinod Kumar
Vs. State of U.P., 2019 (12) ADJ 495

22. Five-Judge Bench judgment of Allahabad High Court on issue of

jurisdiction to entertain application for anticipatory bail by High
Court and Sessions Judge: The legal position on this question has
been unequivocally settled by a five Judges Bench in Ankit Bharti v.
State of U.P, Crl. Misc. Anticipatory Bail Application u/s 438 CrPC
No. 1094/2020 decided on 02.03.2020. The Hon'ble High Court in
this judgment has approved the observations in Vinod Kumar case
(supra). Further the Hon'ble Bench has also laid that the special
circumstances must necessarily be supported and established from
the material on record. There must be strong foundation in support of
the imminent threat of arrest. It may also be kept in mind that the
Hon'ble Supreme Court has held that grant or refusal of bail being an
interlocutory matter there is no finality in the matter. In this context,
the U.P. Amendment under the Explanation attached to section 438
(2) has specifically provided that "The final order made on an

Page 23 of 38
 application for direction under sub- section (1) shall not be construed
as an interlocutory order for the purpose of this Code". See:
Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, (1988) 2 SCC
271

23. Which court has jurisdiction to entertain application for

anticipatory bail when offence committed in one state but
accused resides in other state?: There has been a controversy over
the question as to the court to which the accused may apply for
anticipatory bail when he resides in one State and the offence is
committed in another State.
(i) The Karnataka, Bombay and Delhi High Courts have held that
there is no bar to the applicant seeking redress from the court
within whose jurisdiction he is apprehending arrest. See: Naidu
Vs. State of Karnataka, 1984 Cr.Lj 757(Kant)
(ii) On the other hand, the Punjab, Jammu and Kashmir, Kerala,
Madhya Pradesh and Patna High Courts have held that - (a) bail
is incidental to the trial of an offence, (b) there being no special
provision u/s. 438, the general rule enacted in section 177 CrPC
should apply, so that only that High Court within whose
jurisdiction the alleged offence was committed and which has
jurisdiction to try the case has jurisdiction to grant anticipatory
bail and not the High Court of the State where the applicant
resides and apprehends arrest. See: Ravinder Vs. State of
Punjab, 1984 Cr.Lj 714 (P & H)
(iii) The Calcutta High Court in a Full Bench judgment in Sailesh
Jaiswal Vs. State, (1998) 2 CHN 81 has observed that exercise
of jurisdiction for anticipatory bail by any court, beyond the
local limits of the jurisdiction in which the offences have been
committed is limited to the extent of consideration of bail for
transitional period, but it has no jurisdiction to transgress. It is

Page 24 of 38
 the limit of the local jurisdiction of the Court within which the
offence is alleged to have been committed.
(iv) In a case where, in respect of an offence committed by in the
State of Assam, the petitioner obtained the anticipatory bail
order from Bombay High Court on the ground that they were
residing in the State of Maharashtra, the Hon'ble Supreme Court
set aside such order of anticipatory bail passed by the Bombay
High Court in State Vs. Krishnakumar, AIR 1998 SC 144. The
court observed that the question of granting anticipatory bail to
any person who is allegedly connected with the offence in
question must for all practical purposes be considered by the
High Court of Gauhati within whose territorial jurisdiction such
activities should have been perpetrated. In the above mentioned
two cases, even though the Hon'ble Supreme Court did not
specifically deny the jurisdiction of the court to entertain the
anticipatory bail application by a person within whose
jurisdiction, he resides and apprehends arrest, but for all
practical purposes conferred the jurisdiction on the High Court
within whose jurisdiction the alleged offence had been
committed by setting aside the orders of the High Court granting
anticipatory bail of the Bombay High Court and transferred the
anticipatory bail petition to be heard by the Division Bench of
the Gauhati High Court.

24. Anticipatory bail when not to be granted u/s 438 CrPC?: Being
an extraordinary remedy, it should be resorted to only in a special
case and the petitioner must establish special circumstances, mere
allegation of mala fides or claim of innocence is not enough. He
must adduce prima facie evidence in support of his allegation that a
serious charge of a non-bailable offence has been brought against
him out of malice. In addition to this, the conditions relevant to

Page 25 of 38
section 437, ante, must also be made out to obtain anticipatory bail.
It follows that anticipatory bail should not ordinarily be granted -
(i) Where the charge is so serious as to be punishable with death or
imprisonment for life. Unless the Court is satisfied at the very
start of the investigation that the charge is false or groundless.
The position of such person before arrest cannot be better than
after arrest. See: Gurcharan Singh Vs. State, AIR 1978 SC 179
(para 23)
(ii) Where a legitimate case for remanding the offender to police
custody for the purpose of investigation or a reasonable claim to
secure incriminating material from the offender under S. 27 of
the Evidence Act can be made out. The mere purpose of
identification of the accused during investigation would not be a
ground for refusal of bail. See: Burbaksh Vs. State of Punjab,
AIR P&H 1 (FB)
(iii) In the case of serious economic offences, e.g. where the
prosecution is for evading income-tax to the tune of lacks of
rupees against the community, the investigation should not be
stifled at the very threshold of the investigation, by granting
anticipatory bail. In such cases, there is also the additional
consideration of the likelihood of the offence being repeated.
See: Somabhai Vs. State of Gujarat, (177) CRLj 1523
(iv) Anticipatory Bail in Economic Offences Matters: Power u/s 438
CrPC being an extraordinary remedy, has to be exercised
sparingly, more so, in cases of economic offences. Economic
offences stand as a different class as they affect the economic
fabric of society. Where it was held that an economic offence,
the accused is not entitled to anticipatory bail. The Hon'ble Apex
Court has held as under. The entire community is aggrieved if
the economic offenders who ruin the economy of the State are
not brought to book. A murder may be committed in the heat of

Page 26 of 38
 moment upon passions being aroused. An economic offence is
committed with cool calculation and deliberate design with an
eye on personal profit regardless of the consequence to the
community. A disregard for the interest of the community can
be manifested only at the cost of forfeiting the trust and faith of
the community in the system to administer justice in an even-
handed manner without fear of criticism from the quarters which
view while collar crimes with a permissive eye unmindful of the
damage done to the national economy and national interest. See:
Enforcement Directorate Vs. Ashok Kumar Jain, 1998 2 SCC
105
(v) Where the offence involved is anti-social" and detrimental to
poor people of a substantial dimension.
(vi) As a rule, anticipatory bail should not ordinarily be granted in
the case of unnatural death of a daughter-in-law in the house of
the father-in-law (popularly known as 'dowry death'), so long as
the case is still under investigation. Where there is a case for
remand for the purpose of investigation, not being a purpose of
identification of the accused.
(vii) Anticipatory bail should not be granted in murder case when the
investigation is still incomplete and the proper course of adopt is
to leave the matter to the Trial Court when the accused applies
for regular bail.
(viii) When the accused is alleged to have committed serious offence
of murder and conspiracy to murder and the available evidence
points out, the complicity of the accused in the crime,
anticipatory bail to such an accused is improper. When the name
of the petitioner transpired in FIR of a murder case, anticipatory
bail should not be granted at the stage of investigation. See :
State Vs. Deepak, 1999 CrLj 162 (Guj)

Page 27 of 38
(ix) When the mother-in-law poured kerosene oil on the body of the
daughter in law but the victim has somehow survived the
anticipatory ball in such attempt to murder charge should not be
granted. See: Chandrakanti Vs. State, 2004 CrLj (NOC) 259
(BOM)
(x) When the applicants are involved in offence under S. 498A and
S.304B IPC and investigation of the offences regarding torture
of the wife by the relatives of the husband are in progress, they
should not be enlarged in the anticipatory bail.
(xi) When the High Court granted anticipatory bail to the accused
relying on some contradictory statements in the statement of the
witnesses, the Supreme Court set is aside holding it is not a fit
case for grant of anticipatory bail." When the allegation of rape
has been made against the police officers and there is every
likelihood of the officers tampering with evidence if released on
bail, anticipatory bail should not be granted. See: Chunilal Vs.
State, 1996 CrLj 3864 (HP)
(xii) When prima facie offence of murder committed by the police
officers against the innocent persons in false encounter piercing
their innocent persons with bullets without any provocation,
anticipatory bail should not be granted. See:
(xiii) When the accused is alleged to have committed of cheating the
innocent job seekers taking huge amount from them on the false
promise of giving job, such an accused needs police
interrogation in the custody. So, the anticipatory bail should not
be granted to him.
(xiv) The petitioner accused of torturing a village boy and there
were as many of evidence injuries on the body of the boy. He
had criminal antecedents. So, the anticipatory bail prayed for by
him has been refused.

Page 28 of 38
 (xv) In view of fraudulent evasion of customs duty of Rs. 6.64 crores
by way of mis-declaration and under-valuation in respect of
import of MPEG Cords in the name of four persons, in view of
the prima facie involvement in the offence anticipatory bail
should not be granted." The case if pending against the
petitioner for various offences under IPC read with S. 27 of the
Arms Act. He is involved in eight other cases. In one case, even
if he was granted statutory bail, he did not comply with the
conditions of bail nor did he appear before the police to show
his bona fide. So, he is not entitled to the anticipatory bail.
(xvi) In a murder case, the allegations against the petitioner is
conspiracy to commit murder. Even though eye witness is
available co-accused implicates the petitioner, no anticipatory
bail is to be granted. See: Sandeep Vs. State, 2008 CrLj 4744
(Mad).
(xvii) In a case of cheating and forgery of the petitioner by
performing eye operations of a number of persons without any
medical degree, the custodial interrogation of the petitioner is
necessary. So, no anticipatory bail should be granted. When the
accused in collusion with others defrauded the bank to the tune
of over two crores and is found to have master minded the entire
transaction, he is not entitled to anticipatory bail. See: HDFC
Bank Ltd. Vs. JJ Mannan, AIR 2010 SC 618.

25. How long can an anticipatory bail granted u/s 438 CrPC
survive?: The line of judgments that anticipatory bail should not be
for a limited period places its reliance on the Constitution Bench
decision in Sri Gurbaksh Singh Sibbia case (supra). In Siddharam
Satlingappa Mhetre (supra), the Supreme Court has taken the view
that the Constitution Bench has held that anticipatory bail granted by
the court should ordinarily continue till the trial of the case (See para

Page 29 of 38
 94 & 95). This judgment has been followed in. The other line of
judgments is that orders of anticipatory bail should be of a limited
duration. Relevant judgments in this regard are - Notably these cases
have been decided without referring to the Constitution Bench
judgment in Sri Gurbaksh Singh Sibbia case (supra). A latter
judgment in has referred to a contention based on the Constitution
Bench decision in Sibbia (supra) and yet it has taken a view that the
protection under section 438 is only till the investigation is
completed and charge sheet is filed (See paragraphs 14 & 18 to 20).
It has been followed in Satpal Singh Vs. State of Punjab, (2018)
SCC Online SC 415. Recently a three judges bench of the Hon'ble
Supreme Court in SLP (Criminal) Nos. 7281-7282 of 2017, in
Sushila Aggrawal & Ors. v. State (NCT of Delhi) & anr, in the light
of conflicting views of the different Benches of varying strength,
opined that the legal position needs to be authoritatively settled in
clear and unambiguous terms. Therefore, framing the following
questions, it was referred to the Hon'ble Chief Justice of India for
referring the matter to the larger Bench:

(1) Whether the protection granted to a person under Section 438 CrPC
should be limited to a fixed period so as to enable the person to
surrender before the Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and
stage when the accused is summoned by the court.

26. Duration of anticipatory bail is not subject to any specific time

limit: A Constitution Bench has ruled that under Section 438 CrPC,
an anticipatory bail should not invariably be limited to a fixed
period. The protection can be granted to the accused without any
restriction on time. Normal conditions under Section 437(3) CrPC
read with section 438(2) CrPC should be imposed; if there are

Page 30 of 38
 specific facts or features in regard to any offence. It is open to the
court to impose any appropriate condition including fixed nature of
relief, or it being tied to an event etc. See: Sushila Aggarwal VS.
State (NCT of Delhi), AIR 2020 SC 831. (Five-Judge Bench)

27. No blanket order of anticipatory bail to cover all offences likely

to be committed by the accused in future can be passed by court
u/s 438 CrPC:
(1) The court cannot pass a 'blanket order' of anticipatory bail to the
effect that the applicant shall be released on bail 'whenever arrested
for whichever offence whatsoever'.
(2) The order of the court, granting the anticipatory bail, must also be
clear and specific, with reference to the specific events and facts
disclosed in the application.
(3) It is imperative for the court to specify the offence or offences in
respect of which alone the order will be effective. The power should
not be exercised in a vacuum.

28. Imposing condition of payment of maintenance by husband to

wife for grant of anticipatory bail held proper by Supreme
Court: While granting anticipatory bail to the petitioner, in the
complaint case, for offences punishable inter alia under Section 4 of
the Dowry Prohibition Act, imposing conditions in addition to those
mentioned under Section 438(2) of the CrPC, directed the
petitioner/applicant “in view of the facts and circumstances........ and
the divorce case between the parties is pending as such till any order
is passed, this application is disposed of with direction that till any
order is passed, the petitioner shall pay Rs. 20,000/- per month to the
opposite party no. 2”. The order was challenged before the Hon'ble
Supreme Court, on the plea that no such condition, regarding
payment of monthly maintenance can be made while granting

Page 31 of 38
 anticipatory bail. The Supreme Court held the condition valid and
dismissed the petition filed against grant of anticipatory bail. See:
Order dated 16.10.2020 of the Hon'ble Supreme Court passed in SLP
(Crim.) Diary No. 20961/2020Mohan Murari Vs. The State of Bihar
(Three-Judge Bench)

29. Conditional order of anticipatory bail: In the context of

conditions under section 438(2) Cr.P.C, the Supreme Court has
observed that: While exercising power under Section 438 of the
Code, the Court is duly bound to strike a balance between the
individual's right to personal freedom and the right of investigation
of the police. For the same, while granting relief under Section
438(1), appropriate conditions can be imposed Under Section 438(2)
so as to ensure an uninterrupted investigation. The object of putting
such conditions should be to avoid the possibility of the person
hampering the investigation. Thus, any condition which has no
reference to the fairness or propriety of the investigation or trial,
cannot be countenanced as permissible under the law. So, the
discretion of the Court while imposing conditions must be exercised
with utmost restraint. The words "any condition" used in the
provision should not be regarded as conferring absolute power on a
court of law to impose any condition that it chooses to impose. Any
condition has to be interpreted as a reasonable condition acceptable
in the facts permissible in the circumstance and effective in the
pragmatic sense and should not defeat the order of grant of bail. We
are of the view that the present facts and circumstances of the case
do not warrant such extreme condition to be imposed. In the same
refrain, the Hon'ble Apex Court, with respect to restrictions on the
applicant to travel abroad has made valuable observations in many of
its judgments. It has observed that, "the right to travel abroad is a
valuable one and an integral part of the right to personal liberty.

Page 32 of 38
 Equally, however, the pre-condition of securing prior permission
before travelling abroad is a crucial ingredient which undoubtedly
was engrafted as a condition for the grant of anticipatory bail in this
case………. At best, the condition for seeking prior permission
before travelling abroad could have been regulated, not deleted
altogether. The Supreme Court has passed multiple orders allowing
an accused enlarged on bail to travel abroad. The Supreme Court
allowed an accused-applicant to travel abroad for medical treatment
by modifying its earlier bail order on ground of medical exigency.
An accused- appellant was allowed to travel abroad to meet in the
exigencies of family situation. In the accused-petitioner was
permitted to travel to Indonesia in connection with his employment
and to return once the work was completed. Reiterating the long held
legal principles the Hon'ble Supreme Court in permitted the accused-
appellant to travel to the U.S. The Court has observed - The human
right to dignity and the protection of constitutional safeguards should
not become illusory by the imposition of conditions which are
disproportionate to the need to secure the presence of the accused,
the proper course of investigation and eventually to ensure a fair
trial. The conditions which are imposed by the court must bear a
proportional relationship to the purpose of imposing the conditions.
The nature of the risk which is posed by the grant of permission as
sought in this case must be carefully evaluated in each case. See:
Sumit Mehta Vs. State of Delhi(NCT of Delhi), (2013) 15 SCC 570

30. Regular bail by subordinate court versus interim or anticipatory

bail by High Court: The Hon'ble Supreme Court in an order dated
03 August, 2017 in the case has observed as under: When this Court
or a High Court or even a Sessions Judge grants interim anticipatory
bail and the matter is pending before that Court, there can be no
occasion for the accused to appear and surrender before the learned

Page 33 of 38
 trial court and seek regular bail. The predicament of the subordinate
Judge in considering the prayer for regular bail and the impossibility
of denial of such bail in the face of the pre-arrest bail granted by a
higher forum is real. Surrender and a bail application in such
circumstances is nothing but an abuse of the process of law by the
concerned accused. Once a regular bail is granted by a subordinate
Court on the strength of the interim/pre-arrest bail granted by the
superior Court, even if the superior Court is to dismiss the plea of
anticipatory bail upon fuller consideration of the matter, the regular
bail granted by the subordinate Court would continue to hold the
field, rendering the ultimate rejection of the pre- arrest bail by the
superior Court meaningless. If this is a practice that is prevailing in
some of the subordinate Courts in the Country and we have had
notice of several such cases, time has come to put the learned
subordinate Courts in the country to notice that such a practice must
be discontinued and consideration of regular bail applications upon
surrender during the pendency of the application for pre-arrest bail
before a superior Court must be discouraged. We, therefore, direct
that a copy of this order be forwarded to the Director of all Judicial
Academies in the country to be brought to the notice of all judicial
officers exercising criminal jurisdiction in their respective States.
See: of Rukmani Mahato Vs. State of Jharkhand, Special Leave to
Appeal (Civil) no. 2411/2016

31. No anticipatory bail u/s 438 CrPC for offence under SC&ST
(Prevention of Atrocities) Act, 1989: Section 18 of the SC&ST
(Prevention of Atrocities) Act, 1989 (Now 2015 Act) provides:
Section 438 of the Code not to apply to persons committing an
offence under the Act- Nothing in section 438 of the Code shall
apply in relation to any case involving the arrest of any person on an
accusation of having committed an offence under this Act. With

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respect to anticipatory ball vis-a-vis the the Act of 1989, the Hon'ble
Supreme Court in" held that "there is no absolute bar against grant of
anticipatory bail in cases under the Atrocities Act if no prime facie
case is made out or where on judicial scrutiny the complaint is found
to be prima facie mala fide. Taking note of the above and other
findings of the Supreme Court, Section 18A has been added to the
Act of 1989, which inter alia provides-
The provisions of Section 438 of the Code shall not apply to a case
under this Act notwithstanding any judgment or order or direction of
any court. The Hon'ble Supreme Court upheld in State of M.P. Vs.
Ram Krishna Balothia, AIR 1995 SC 1198 the validity of Section 18
of the Act of 1989. Decision to the same effect was rendered in Vilas
Pandurang Pawar v. State of Maharashtra (2012) 8 SCC 795: AIR
2012 SC3316. In case of Prithvi Raj Chauhan Vs. Union of India,
AIR 2020 SC 1036 dealing with the legality of insertion of Section
18A, has observed- Concerning the applicability of provisions of
Section 438 CrPC, it shall not apply to the cases under the Act of
1989. However, if the complaint does not make out a prima facie
case for applicability of the provisions of the Act of 1989, the bar
created by section 18 and 18A(i) shall not apply. While considering
any application seeking pre-arrest bail, the High Court has to balance
the two interests: i.e. that the power is not so used as to convert the
jurisdiction into that under Section 438 of the Criminal Procedure
Code, but that it is used sparingly and such orders made in very
exceptional cases where no prima facie offence is made out as shown
in the FIR, and further also that if such orders are not made in those
classes of cases, the result would inevitably be a miscarriage of
justice or abuse of process of law. This was also clarified by the
Hon'ble Court in the review petition - Union of India v. State of
Maharashtra, AIR 2019 SC 4917.

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32. Police custody remand for a likely discovery u/s 27 of Evidence
Act during anticipatory bail: The Hon'ble Supreme Court in
Gurubaksh Singh Sibba Vs. State of Punjab, AIR 1980 SC 1632 has
taking note of such an eventuality has laid down That in the event of
the police making out a case of a likely discovery under Section 27
of the Evidence Act, person released on bail shall be liable to be
taken in police custody for facilitating the discovery. Besides, if and
when the occasion arises, it may be possible for the prosecution to
claim the benefit of Section 27 of the Evidence Act in regard to a
discovery of facts made in pursuance of information supplied by a
person released on bail by invoking the principle stated by this Court
in State of UP. v. Deoman Upadhyaya, AIR 1960 SC 1125, 1961(1)
SCR 14.

33. Limited custody, deemed custody and Section 27 of Evidence

Act: In the light, the Hon'ble Apex Court in Sushila Aggarwal
has elaborated: Therefore, the "limited custody" or "deemed
custody" to facilitate the requirement of the investigative authority,
would be sufficient for the purpose of fulfilling the provisions of
Section 27, in the event of recovery of an article, or discovery of a
fact, which is relatable to a statement made during such event (i.e.
deemed custody). In such event, there is no question (or necessity) of
asking the accused to separately surrender and seek regular bail.
Sushila Aggarwal Vs State (NCT of Delhi), AIR 2020 SC 831 (Five-
Judge Bench)

34. Application of Section 438 CrPC to juvenile: The Madhya Pradesh

High Court in has held that provisions of section 12 of the Juvenile
Justice (Care & Protection of Children) Act, 2000 do not provide the
power to grant anticipatory bail to the JJ Board. Therefore, the JJ
Board has no jurisdiction to entertain application under section 438
of CrPC. The High Court held that a 'juvenile in conflict with law'
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can make an application for bail only before the JJ Board and
accordingly such a juvenile is not entitled to maintain an application
for grant of anticipatory bail u/s 438 of CrPC. Similar opinion has
been expressed in another judgment of the High Court of Madhya
Pradesh. See: Kamlesh Gurjar Vs. State of M.P., M.Cr.C no. 10345
of 2009
(i) However, the following the judgment of the same High Court
held that the provision of anticipatory bail as provided under
section 438 CrPC is applicable to a juvenile in conflict with law
and accordingly an application submitted by such person before
the appropriate court is maintainable.
(ii) This issue has been also examined by the Allahabad High Court
in Shahaab Ali (Minor) v. State of U.P, Crl. Misc. Anticipatory
Bail Application u/s 438 CrPC No. 597/2020, decided on
20.01.2020. The court has examined the question from two
perspectives- (1) Position where the minor approaches the court
after registration of FIR and (ii) Position where a minor
apprehends arrest and detention prior to the registration of FIR.
Examining the legal provisions under the Juvenile Justice (Care
and Protection of Children) Act, 2015 and in particular the non
obstante clause under section 1(4) of the II Act, the court held
that the provisions under section 438 CrPC are excluded by the
JJ Act. Therefore, once an FIR is registered or information is
otherwise recorded by the concerned authority with regard to a
child in conflict with law, the provision of section 438 stand
impliedly excluded. Thus, post registration of FIR anticipatory
bail cannot be granted to a child covered under the JJ Act.
However, as the provision regarding bail under the JJ Act comes
into play only after the recording of the report regarding an
offence, therefore, prior to that a child apprehending detention

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may invoke the provision regarding anticipatory bail before the
Sessions or High Court.

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