JUDGMENTS REGARDING PARTIES SEEKING ANTICIPATORY BAIL

SR NO NAME AND RELEVANT PARA

CITATION
1. Gurbaksh Singh Sibbia 7. Anticipatory bail is a pre-arrest legal process
Vs State of Punjab which directs that if the person in whose favour it is
issued is thereafter arrested on the accusation,
1980 2 SCC 565 direction is issued, he shall be released on bail.
The distinction between an ordinary bail and
anticipatory bail is that the former is granted after
arrest and therefore means release from the custody
of the police, the latter is granted in anticipation of
arrest, effective at the very moment of arrest.
A direction under section 438 is therefore intended
to confer conditional immunity.

35. Section 438(1) of the Code lays down a

condition which has to be satisfied before
anticipatory bail can be granted. The applicant must
show that he has “reason to believe” that he may be
arrested for a non-bailable offence. The use of the
expression “reason to believe” shows that the belief
that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not
‘belief”, for which reason it is not enough for the
applicant to show that he has some sort of a vague
apprehension that someone is going to make an
accusation against him, in pursuance of which he
may be arrested. The grounds on which the belief of
the applicant is based that he may be arrested for a
non-bailable offence, must be capable of being
examined by the court objectively, because it is then
alone that the court can determine whether the
applicant has reason to believe that he may be so
arrested. Section 438(1), therefore, cannot be
invoked on the basis of vague and general
allegations, as if to arm oneself in perpetuity against
a possible arrest.

36. If an application for anticipatory bail is made to

the High Court or the Court of Session it must apply
its own mind to the question and decide whether a
case has been made out for granting such relief.

37. The filing of a first information report is not a

condition precedent to the exercise of the power
under Section 438.

38. Anticipatory bail can be granted even after an

 FIR is filed, so long as the applicant has not been
arrested.
2. Siddharam Satlingappa 111. No inflexible guidelines or straitjacket formula
Mhetre v. State of can be provided for grant or refusal of anticipatory
Maharashtra, bail. We are clearly of the view that no attempt
should be made to provide rigid and inflexible
(2011) 1 SCC 694 guidelines in this respect because all circumstances
and situations of future cannot be clearly visualised
for the grant or refusal of anticipatory bail. In
consonance with the legislative intention the grant or
refusal of anticipatory bail should necessarily depend
on the facts and circumstances of each case.

112. The following factors and parameters can be

taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is made;
(ii) The antecedents of the applicant
including the fact as to whether the accused 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;
(iv) The possibility of the accused's
likelihood to repeat similar or other offences;
(v) Where the accusations have been made
only with the object of injuring or humiliating
the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude affecting
a very large number of people;
(vii) The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in the
case. The cases in which the accused is
implicated with the help of Sections 34 and 149
of the Penal Code, 1860 the court should
consider with even greater care and caution
because overimplication in the cases is a matter
of common knowledge and concern;
(viii) While considering the prayer for grant
of anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention of
 harassment, humiliation and unjustified detention
of the accused;
(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail.

3. Savitri Agarwal v. State 14. Section 438 of the Code confers on the High
of Maharashtra, Court and the Court of Session, the power to grant
“anticipatory bail” if the applicant has “reason to
(2009) 8 SCC 325 believe” that he may be arrested on accusation of
having committed a non-bailable offence.

4. Sushila Aggarwal v. 53. The courts had the discretion to impose such
State (NCT of Delhi), limitations (like cooperation with investigation, not
tampering with evidence, not leaving the country,
(2020) 5 SCC 1 etc.) as were reasonable and necessary in the
peculiar circumstances of a given case. However,
there was no invariable or inflexible rule that the
applicant had to make out a special case, or that the
relief was to be of limited duration, in a point of
time, or was unavailable for any particular class of
offences.

91.1 This Court holds that the protection granted to a

person under Section 438 CrPC should not
invariably be limited to a fixed period; it should
ensure in favour of the accused without any
restriction on time. Normal conditions under Section
437(3) read with Section 438(2) should be ismposed;
if there are specific facts or features in regard to any
offence, it is open for the court to impose any
appropriate condition.

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 till 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 from arrest. It should be
confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a
specific incident. It cannot operate in respect of a
future incident that involves commission of an
offence.