TABLE OF ABBREVIATIONS

AIR :………………………………………….. All India Reporter

ALJ :…………………………………………. Allahabad Law Journal
AP :…………………………………………… Andhra Pradesh
Art : ……………………………………………Article
BC : ……………………………………………Before Common Era
SC :……………………………………………. Supreme Court
CA :…………………………………………….. Court of Appeal
CLB :…………………………………………. Company Law Board
CLJ :…………………………………………… Cambridge Law Journal
CLR :…………………………………………. Commonwealth Law Reports
CPC :………………………………………… Civil Procedure Code
CrPC :…………………………………………. Criminal Procedure Code

5
 TABLE OF STATUTES

1. Constitution of India

2. Indian Penal Code (IPC)

3. The Indian Evidence Act, 1872. (Bare Act)

4. The Indian Penal Code, 1860 (Bare Act)

5. Code of Criminal Procedure ACT, 1973

6
 TABLE OF CASES

1. Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr., 2016 SCC (1) 152.

2. Bhagirathi Mahapatra v. State, 1975 Cri LJ 1681.

3. Bharat Chaudhary & Anr. v. State of Bihar & Anr., 2003 SCC (Crl.) 1983.

4. Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111.

5. Bimaladak v. State, 1997 Cal Cri LR 72.

6. Burbaksh v. State of Punjab, AIR P&H 1 (FB).

7. CBI v. P.S. Jayaprakash, Cri. App.No. 2147-2149 of 2022 decided on

8.12.2022 of the Hon’ble Supreme Court.

9. Chajju Ram Godara v. State of Haryana, 1978 Cri LJ 608.

10. Chambers v. Florida (1940) 309 US 227

11. Kanhaiyalal Rathi v. State of M.P., 1978 L.J. note 30.

12. Kanshi Ram v. State of Punjab, 1961] INSC 230.

13. Kashmir Singh v. State of Punjab, AIR 1977 SC 2147.

14. Kumar Yadav v. Ravindra Kumar, 2008 (1) SCC 632.”

15. Lilaram L. Revani v. R.D. Gandhi, 1998 Cr LJ 14 (Guj).

16. Lisseuba v. Califronia (1941) 314 US 219

17. Liversidge v. Anderson, (1941) 3 AII ER 338.

18. LT. Col. Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458.

19. Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045

7
 TABLE OF CONTENT

S. No. PARTICULARS PAGE NO.

1 CHAPTER 1: INTRODUCTION 9-38

2 OBJECTIVES OF THE RESEARCH 35

3 RESEARCH METHODOLOGY 36

SIGNIFICANCE OF THE STUDY

4 36

CHAPTER 2: LEGAL ASPECTS OF THE CONCEPT OF

5 ANTICIPATORY 39-63

6
CHAPTER 3;STATUTORY PROVISIONS, RECENT
AMENDMENTS AND IT’S IMPACT ON THE CONCEPT
64-96
CHAPTER 4: JUDICIAL APPROACH

7 97-118

8 CHAPTER 5: CONCLUSION AND SUGGESTIONS 119-126

127-128
BIBLIOGRAPHY

8
 CHAPTER–I

INTRODUCTION

Man is a social animal. He cannot live alone. Therefore, man needs company
whether it is of his family members, society, friends, colleagues etc. So, while living
in the company sometimes there is a clash of interests (whether economical, religious,
sexual, political, business etc.) and frauds between different family members, Gangs
etc. and then the methodology of eliminating the opponent is adopted resulting into
assault, grievous hurt, murder, burning and destroying the property. In this phenomenon
sometimes innocent persons become prey and they are named as accused- main or co-
accused and thus, they become subjects to inhuman torture by thepolice for obtaining
their confessions and extorting money from them or their relatives.

Thomas Jefferson asserted that, “Under the law of nature, all men are born
free, everyone comes into the world with a right to his own person, which includes the
liberty of moving and using it at his own will. This is what is called personqal liberty
and is given him by the author of nature, because necessary for his own sustenance.”1

It is also an established fact that generally nobody wants to commit crime but
sometimes due to self-existence, or private defence or distress, necessity well as enmity
man commits a crime. When crime is committed then the criminal legal process starts
i.e. arresting and detaining him/her. This is also a bitter fact that once a person is
arrested and put behind bar, nobody knows how much it will take to “bail” him out. So,
with a view to protect oneself from long detention in jail and to undergo rigorous and
arduous procedure of law, the concept developed “bail before jail or arrest” widely
known as anticipatory bail. Hence, in this chapter an attempts has been made to discuss
the concept from “embryostage to maturity” in the light of legal, social and various
dimension.

It will also relevant here to mention that in Moti Ram v. State of M.P.2,
Justice Krishna Iyer laid down the concept of “Bail Not Jail” i.e. “Bail is rule and jail

1
Paul Leicester Ford, ed., The Writings of Thomas Jefferson, G. P. Putnam’s Sons, New York, 1892.
2
AIR 1978 SC 1954.

9
is exception” which has become the foundation stone of “the concept of bail” and
anticipatory bail and is prevalent in lower Judicial Courts to the High Courts and the
Supreme Court too.

It is worth remembering that earlier there was no concept of “anticipatory

bail.”It is common practice to set “bail prior to an arrest”.3This provision is not
mentioned in the prior Code.4 To prevent harassment of innocent people, the Indian
Law Commission5 suggested including this clause in 1969. It suggested that the issue
be decided by the courts rather than written into law. He had faith in the appellate court
and was confident he would exercise his discretion fairly and not restrict with the due
process of the pending trials.

The accused might apply for anticipatory bail if they have a legitimate fear of
being arrested for a cognizable offence. With the right to bail, a defendant can get out
of jail while his case is being decided. The gravity of the accusations determines
whether or not an arrest is warranted. Conversely, the Cr.P.C. establishes guidelines for
when an accused person may be released from custody following an arrest. The
anticipatory bail provision is a benefit for many accuseds in criminal cases, especially
those involving dowry death etc. It’s requested in the event of imminent arrest by the
innocent person.

Parliament understood the significance of individual liberties in a democratic

society, therefore it created section 438 of Cr.PC. Parliament’s goal was to promote
respect for individual liberty and give weight to the core principle of criminal law that
no one is guilty until proven guilty. Each of us places a high importance on our own
life and autonomy. Being self-reliant is a fundamental human desire. Each person’s
right to personal liberty and the presumption of innocence are safeguarded by section
438 of the Criminal Procedure Code. Careful interpretation of Cr.P.C. Section 438 is
required because of the grave implications of bail denial.

The most widely lauded aspects of the Indian Constitution are the fundamental
rights guaranteed to every citizen and to protect the accused person’s freedom and life,
“bail may be granted”. Anticipatory bail, or the release of an individual on bail

3
SiddharamSatlingappaMhetrev. State of Maharashtra &Ors., (2011) 1 SCC 694.
4
The Code of Criminal Procedure, 1898, Act No. 5 of 1898
5
41st Report, "the Law Commission of India."

10
that was granted before to their arrest, is made possible by Section 438, which grants
the superior courts the authority to make such orders. In its 41st Report, “the Law
Commission” acknowledged the need for such a provision, stating: “The main reason
why anticipatory bail is necessary is because powerful people may occasionally try to
indict their competitors in bogus cases in order to shame them or to get them held in
jail for a few days for other reasons. Outside of fabricated cases, there doesn’t appear
to be any reason to make an accused person submit to custody, stay in prison for a
few days, and then ask for bail if there are reasonable grounds to believe that he
won’t abscond or abuse his freedom while out on bond.”6

A person’s “right to freedom” is both a natural and a fundamental human

right. One must, however, uphold the lawful protections afforded to others, “such as the
right to one’s own life and property”. The legal system moves into action when probable
cause exists to believe a person has committed a crime, resulting in an arrest, trial, and
possible punishment. When a someone gets arrested, his freedom is taken from him.
His release from jail is contingent upon his promise to appear in court at a later date
and to accept the penalty imposed for his offence.

Thus, the study of legislative and judicial perspectives regarding anticipatory

bail is crucial in understanding the legal implications of this provision. To get out of
jail before they’re even arrested, someone who thinks they’re about to be arrested for
a crime can ask for anticipatory bail. This provision aims to protect individuals from
arbitrary and unjust arrest, ensuring their right to liberty. Thus, to fully grasp
anticipatory bail and its importance in “the criminal justice system”, it is necessary to
look at it from the perspectives of the court and the legislator.

Meaning and Definition of “Bail” and “Anticipatory Bail”:

The legal concepts of bail and anticipatory bail have widespread usage within
the criminal court system. A person who is out on bail has been released from jail
pending trial or sentencing on the promise that they would appear in court as and when
ordered. However, a person may apply for “anticipatory bail” in the event that they
believe they will soon be detained. Both of these concepts are essential for upholding
the rule of law and protecting people’s rights.

6
K. Rajeev Reddy, "Anticipatory Bail: Critical Analysis", on March 28, 2021 online available at:
https://thelawcommunicants.com/anticipatory-bail-critical-analysis/

11
 Definition of “Bail”:

Justice William Blackstone defined it as “a delivery or bailment of a person

to his sureties on their giving, together with himself, sufficient security for his
appearance, he being supposed to continue in their friendly custody instead of going to
jail.”This implies that a defendant who is released on bond will be required to make
court appearances as necessary. In most cases, in addition to signing bail, the individual
must also sign a bond promising to appear in court at a later date.7

The term “bail” is defined as follows in Black’s Law Dictionary: “a security

such as cash or bond especially security required by a court for the release of a prisoner
who must appear at a future date”.8

In the case of Kamlapati v. State of West Bengal9, the term “bail” was defined
by the Apex Court, “A method that has developed to achieve a balance between two
fundamental human values: the accused’s right to personal freedom and the public
interest in ensuring that the accused appears in court to face trial.”10

According to Law Commission’s 268th Report (2017),”the term of ‘Bail’

essentially means the judicial interim release of a personsuspected of a crime held in
custody, on entering into a recognizance, with or without sureties, that the suspect
would appear to answer the charges at a later date; and includes grant of bail to a
person accused of an offence by any competent authority under law.”11

Thus, it can be defined as that, bail is a conditional release of a person by Police,

Magistrate, and Court during “investigation”, “enquiry” or “Trial.”

Define the word”Anticipatory” and “AnticipatoryBail”:

The Collins (Dictionary) defines “anticipatory as feeling or action is one that

you have or do because you are expecting something to happen soon.”12 It’s how you

7
Janak Raj Jai, Bail Law and Procedures, 6th Edn., Universal Law Publishing, 2015.
8
ShivanshuGoswami, “Analysis of the legal aspects of anticipatory bail: Law and reality”, August6,
2020 available at: https://thedailyguardian.com/analysis-of-the-legal-aspects-of-anticipatory-bail-
law-and-reality/
9
AIR 1979 SC 777.
10
Ibid.
11
268th Report of the Law Commission of India, 2017.at p. 22.
12
“Condition for Anticipatory Bail in India”, Tripaksha Litigation, August 19, 2023 online available
at: https://tripakshalitigation.com/condition-for-anticipatory-bail-in-india

12
feel when you have advance warning of anything. It can also be used to characterise
an event that occurs foretelling the occurrence of another event in the future.

Similarly, theCambridge (Dictionary) “a feeling of excitement about

something that is going to happen in the near future.”13

Whereas, as per the Macmillan Dictionary, Anticipatory is “relating to the

feelings that you get when you are expecting something to happen.”

The “Law Commission’s 41st Report (1969)” observed: “The need for
anticipatory bail arises because powerful people often try to incriminate their rivals
in fake cases to disgracing them or hold them for a few days. Recent political conflict
has accentuated this tendency.”14

The words “anticipatory bail”are not defined in the Cr.P.C., 1973. An arrest
is necessary for this euphemism, anticipatory bail, to be enforced. An individual who is
about to be arrested for a crime for which bail cannot be given can, with the “Section
438 of the Criminal Procedure Code”, petition either the High Court or the session’s
court to issue anticipatory bail.

In Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 15, the

court observed, “The requirement to issue an anticipatory bail occurs primarily as a
consequence of persons often motivated by intimidation trying to get their competitors
embroiled in bogus cases for embarrassment, or certain reasons, by holding them in
jail for a duration of a maximum of several days...”16 However, a person who is familiar
with both the term “anticipatory” and the concept of “bail” will have no trouble grasping
the idea of “anticipatory bail,” despite the fact that the former lacks a precise
designation for definition and the latter can be elucidated only by the applicable
provision, leaving the latter to the interpretation of wise men.

Origin and Development of the word “Bail”:

The word “bail” can be traced back to ancient times. The concept of releasing
an accused person pending trial has roots in early legal systems too, such as those
13
Ibid.
14
41st Law Commission Report of 1969 in paragraph 39.9.
15
(2011) 1 SCC 694.
16
Ibid.

13
found in ancient Greece and Rome. Bail was viewed as a measure to ensure the accused
would appear in court and keep the peace in these countries. Over thecenturies, the idea
of bail has evolved and been refined, with different legal systems adopting their own
approaches.

The French verb ‘baillier’, 17

meaning “to give” or “to deliver,” is the
etymological ancestor of the English term “bail.” The Latin term “bajulare”, which
means “to carry,” is also linked to the word “bajula.”18It permits them to live their lives
normally while preparing their defence and provides them with a small taste of freedom
before their trial. The history and evolution of bail can tell us a lot about how the legal
system interacts with those who are accused of misconduct. Although bail has ancient
roots, the idea behind it has been around for a very long time.

Although “the concept of bail” has its origins in Roman law, the way it is
commonly understood in the United States derives more directly from English Law.
The blood feud was the primary manner by which Germanic tribes like the Angles,
Saxons, and Jutes settled conflicts after colonising Britain after the fall of Rome in the
fifth century. In many cases, the families of the offender and the victim would engage
in a secret battle against each other until everyone on both sides was dead.

However, this ‘justice’ was extremely violent and expensive, so these

communities swiftly adopted a new legal system centred on the exchange of products
and then money to settle disputes. In turn, this payment was founded on the notion of
the ‘wergeld,’ which literally translates to’manprice’or’man payment,’ and which is
also more popularly known as a ‘bot,’ and which is the value assigned to every
individual and, presumably, their possessions depending on their social status. In
addition to full wergeld payments for killing people of different ranks, historians note
the existence of precise tariffs awarding partial wergeld payments for injuries likelimb
loss or other wrongs. It’s true that the wergeld system eventually supplanted blood feuds
between families, but its roots in kinship and private justice meant that wrongs were
still addressed inside families, rather than in the broader community or state as is the
case in current times.

17
Shivi, “Meaning, Concept and Types of Bail in India”, on July 4, 2018.
18
P.V. Ramakrishna, Law of Bails, Universal Law Publishing. Ninth Edition, 2016, p. 39.

14
 The primary causes of this heterogeneity in bail laws is the degree to which each
state has followed the principles and practises emerging out of the two earlier
generations of bail reform in the 1960s and 1980s. However, even in places with
comparable rules, pre-trial procedures might differ significantly. As a matter of fact,
even within the same state, bail practises might differ from one jurisdiction to the next
and from judge to judge. Concerns regarding equal justice, the process through which
citizens of the United States can rest comfortable that the laws will be applied
consistently regardless of where they live, the court they go to, or the judge they face,
are warranted when bail settings diverge from what is necessary for individualised
cases. State and federal constitutional legislation would normally provide sufficient
benchmarks to assure equal justice; yet, there is a frustrating lack of vocabulary and
viewpoints against which particular practises or even the laws these practises originate
might be measured when it comes to bail. However, best practise guidelines on pre-trial
release and detention have been developed, which combine basic legal principles with
empirical research to provide guidance on practically every aspect of pre-trial justice.
To develop bail schemes that are fair and applied somewhat uniformly across the states,
the current generation of pre-trial reformers is realising that not only bail practises but
“the laws themselves, from court rules to constitutions, must be held to best practises
and the legal principles underlying them”.19

The term “bail” has a specific meaning in the law: it refers to the practice of
releasing an accused criminal from jail until trial or appeal, in return for a bond that
promises the defendant will show up at the scheduled court appearance.” TShe bail, or
more properly the bail bond, is the monetary value of the security determined by the
court with jurisdiction over the defendant.” Cash, title documents, or a bond from a
wealthy individual or a reputable bonding organisation can all be used as security. If
the person who was granted bail fails to turn himself in at the scheduled time, “the bail”
bond will be cancelled.20 Bail is a legal remedy that can be applied after anarrest
and is meant to secure the suspect’s release until the trial date. The bail system ensures
that “everyone has the right to remain free until their guilt is confirmed”. In order for
an accused individual to have time to prepare a defence before trial, bail is

19
Asim Pandya, Law of Bail, Practice and Procedure, 2nd Edition, Lexis Nexis, 2015
20
http://www.legalserviceindia.com/articles/bail_poor.htm

15
given in accordance with “the common law” presumption of innocence.21 Bail is a legal
procedure that has been used in many different judicial systems around the world from
ancient times. Bail’s footprints can be found all the way back in prehistoric times. It’s
hard to pin down a certain moment in history when bail was originally instituted or
used, but if we look across the various eras of human society, we may discover allusions
to bail being used in various places around the world ever since its inception. Evidence
of bail can be traced back to the Greek and Roman empires and shows how it has
evolved through the ages to the present day, when virtually every country has some
form of bail in its criminal procedure.

In criminal law, “the right to bail is a fundamental component” that is regulated

by laws. The offences that are eligible for bail release and those that are not are clearly
defined. Although bail can be granted for either kind of offence, it is often assumed to
be granted automatically in bailable instances. Instead of being defined anywhere in the
Criminal Procedure Code of 1973, the words “bailable” and “non- bailable” are stated
in connection to the offences themselves. The first schedulespecifies which charges are
eligible for “bail” and which are not. In the absence of a specific statute designating a
crime as bailable or non-bailable, the secondclassification in “the first schedule of the
Criminal Procedure Code of 1973” would govern. In such a case, the offender would
only be eligible for bail release if the maximum sentence for the crime was below three
years. The bail decision-making process is fraught with peril since it must constantly
weigh the accused’s rightsagainst the public interest. Both the individual’s right to
freedom via bail and society’s interest in a fair and efficient trial are in conflict with
one another. When a defendant is out on bail, he or she is “still presumed innocent
unless proven guilty in acourt of law.” The first is the arrestee’s, who wants to be freed
from jail in exchange for a monetary bond (Monterey or another guarantee) that ensures
his or her appearance in court. The other motivation is the societal interest in keeping
its members safe from criminal behaviour.

A person is “presumed innocent unless proven guilty in a court of law”,

according to this well-established principle of criminal law. However, acquitting the
guilty by unethical means is not consistent with conducting a fair trial. An impartial

21
Asim Pandey, Law of Bail Practice and Procedure, 2nd Edition, Lexis Nexis, 2015 p. 8.

16
trial has two goals: (i) It must treat the accused fairly. (ii) The State’s interests must
also be taken into account. It is very important that very trail must be evaluated on the
origin these goals.

It is not permissible to refuse bail on the grounds of the gravity of the offence
because an accused person is presumed innocent unless proven guilty.The court has
broad discretion to decide whether to grant bail, but it must do it fairly and legally.
We are all aware that the Indian police make thousands of arrests every day on various
charges, some of which are minor and others of which are more serious.
Notwithstanding of the character of the crime, the accused is always taken intocustody
and held in jail pending trial, with the goals of providing justice for the victim if the
accused is found guilty and preventing him from committing the same crime again.
Laws governing bail and arrest have gained considerable importance in the modern era
because of their potential impact on a person’s fundamental right to personal liberty, as
guaranteed by the Constitution and applying even to those who have been accused of a
crime.

The Concept of Anticipatory:

“Anticipatory bail” is a legal provision that permits “a person to apply for bail”
before to their arrest for an offence that normally would not qualify for release. It’s a
crucial protection offered by our criminal justice system to shield citizens against
malicious prosecution or false accusations.

The idea of anticipatory bail was developed to protect people from being
wrongfully detained and subjected to the associated humiliation, expense, and loss of
freedom. It acknowledges that a person’s freedom should not be immediately revoked
upon being accused of a crime.

Anticipatory bail allows defendants to seek the court’s protection against

imminent arrest. By requesting bail in advance, they can ensure their quick release from
detention upon arrest. Anticipatory bail allows defendants to escape pre-trial
imprisonment, protect their reputations, and continue living normally while their cases
are pending.

In order to be granted anticipatory bail, a defendant must often present

17
compelling evidence that they are not a flight risk. The applicant’s character and history
are considered along with the seriousness and kind of the offence, the likelihood that
the applicant will attempt to avoid punishment or alter evidence, and the severity of the
crime. When issuing a warrant for pretrial release, the court may also set conditions,
such as requiring the defendant to participate with the investigation, appear for
questioning by police, or obtain prior approval to leave the country.

Those who fear being arrested on bogus charges, out of spite, or because of
professional or personal rivalry often seek anticipatory bail. It ensures that no one is
arbitrarily arrested or detained, protecting an “individual’s right” to freedom and
dignity.It must be stressed, however, that even with anticipatory bail, an individual is
not completely safe from arrest. The person who was granted anticipatory bail must
appear in court if they are subsequently arrested, and they must also follow any terms
imposed by the judge, but the bail conditions are not met, the bail may be revoked. The
welfare of justice, the protection of individual rights, and the avoidance ofcriminal
justice system abuse must all stay harmonious, and anticipatory bail plays asignificant
role in achieving this. It upholds the presumption of innocence until guilt isproven and
protects individuals from being subjected to unjust trials that could result in “the loss
of their freedom or reputation”.

“Anticipatory bail” can be traced back to the British legal system, which laid
the groundwork for India’s legal system. Anticipatory bail was first established in India
with the passing of “the Cr.P.C., 1973, which superseded the earlier Cr.P.C. of 1898.”
The reason of including anticipatory bail in the Cr.P.C. was to safeguardpeople from
arrest for crimes for which bail is not normally granted. It was written to protect their
constitutional rights and stop police from abusing their arrest authority. “Anticipatory
bail” is outlined in Section 438 of Cr.P.C. It allows “the High Court or the Court of
Session” to release an accused criminal on bail if they believe they would be
apprehended for a non-bailable offence.22

22
Section 438- "Protection of life and personal liberty- No person shall be deprived of his life or
personal liberty except according to the procedure established by law”.

18
 The presence of “Section 438 in the Cr.P.C. was suggested in the 41st Report
of the Law Commission of India” as a means to safeguard individual rights during
investigations and achieve a reasonable compromise between the state’s and the
accused’s interests. Numerous seminal rulings by India’s highest court throughout the
years have refined and expanded the use of “anticipatory bail”. Court decisions have
clarified the meaning of “anticipatory bail” and established parameters for its
issuance.Anticipatory bail developed in India with the protection of individual rights,
the preservation of the assumption of innocence, and the avoidance of unlawful
detention as its driving principles.

Anticipatory bail plays a crucial role in fostering a just and balanced criminal
judicial system and safeguarding citizens’ rights and liberties in India.In the previous
Cr.P.C. from 1898, “anticipatory bail was not a possibility. In its 41st report, dated
September 24, 1969, the Law Commission of India highlighted the need for a provision
in the Code that would allow the High Courts and the Session Courts to grant
anticipatory bail to protect an accused or any person who is apprehending or hasreason
to believe that they may be arrested for any non-bailable offence”.

19
 “The Law Commission argued that anticipatory bail” was instituted due to the
fact that influential individuals would fabricate accusations of misconduct against
their competitors in an effort to bring shame upon them or utilise them for illicit
activities like blackmail. Additionally, it was observed that the pattern indicatedbefore
seemed to be steadily increasing as the level of political clash rose. “The Law
Commission” noted that, it might not be feasible to enumerate every possible scenario
in which anticipatory bail could be granted due to concerns about potentially prejudiced
judgements in pending cases. Therefore, the courts were given discretionin this matter
without any limitations from the statute.

The Law Commission recommended (and there was an urgent need for at the
time) “Direction for grant of bail to person apprehending arrest”, which led to the
addition of “a provision for anticipatory bail to the Code at Section 438, under the
heading Preventive release.”23

Development of Law of Anticipatory Bail:

Anticipatory bail law has taken an atypical path of development due to the
high volume of Supreme Court decisions on the topic. In the history of anticipatory bail,
the following decisions have been considered as influential, relevant and guiding
stars.24

23
“Section 438 – Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an 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; and that court may, if it thinks fit, direct that in the event of sucharrest, he shall be
released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include
such conditions in such directions in the light of the facts of the particular case, as it may think fit,
including:
1. a condition that the person shall make himself available for interrogation by a police officer as and
when required,
2. a condition that the person 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,
3. a condition that the person shall not leave India without prior permission of the court,
4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were
granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of arrest or at any time while in the custody of
such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such
offence decides that a warrant should be issued 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).”
24
Aditya Mehta &RiaLulla, “Decoding the Law on Anticipatory Bail”, on January 28, 2021 available at:
https://corporate.cyrilamarchandblogs.com/2021/01/decoding-the-law-on-anticipatory-bail

20
 The first seminal decision on “anticipatory bail” was handed down by a five-
judge panel of the highest court in the Sibbia case.25 This decision set the precedent
for the idea of “anticipatory bail” and established its legal status in the country. The
Supreme Court has determined that any regulation addressing an individual’s freedom
cannot be unjustly limited by reading constraints into it, particularly those that do not
present in the statute itself, and personal freedom has been acknowledged as a
constitutional right under Article 21. 26 The Supreme Court’s decision in Maneka
Gandhi27, provided inspiration for this approach by stating that any laws that affect an
individual’s right to freedom must be “just, fair and reasonable.”

Moreover, the highest court in the land has made it clear that judges should
exercise caution when trying to arbitrarily limit the scope of Code Section 438 when
lawmakers have not done so. The Apex Court reasoned that this is why there shouldn’t
be a limit on how long someone might be granted “anticipatory bail”. The highest court
stressed that “anticipatory bail should not be limited by statute in terms of time since
that would change the concept from one that guarantees personal liberty to one that
offers contingent freedom”.

The Apex Court further explained that courts have discretion to impose stringent
restrictions based on their assessment of the seriousness of the defendant’s allegations.
The higest court also established precedents, like as “(i) the applicant must show that
he has ‘reason to believe’ that he may be arrested for a non–bailable offence (ii) the
High Court or the Sessions Court as the case may be must apply its own mind to the
question and decide whether a case is made out for granting such a relief (iii) the filing
of a First Information Report (‘FIR’) is not a condition precedent to the exercise of
power under Section 438 (iv) anticipatory bail can be granted even after an FIR is filed,
so long as the applicant has not been arrested (v) the provisions of Section 438 cannot
be invoked after the arrest of the accused (vi) a blanket order of anticipatory bail should
not generally be passed and (vii) the normal rule should not be to limit the operation of
the order in relation to a period of time.”

25
Gurbaksh Singh Sibbia, (1980) 2 SCC 565
26
Ibid., paragraph 26.
27
Maneka Gandhi v. Union of India, AIR 1978 SC 597

21
 In a subsequent case, Salauddin Abdulsamad Shaikh28, a three-judge panel of
the Apex Court disagreed and determined that “anticipatory bail” ought to have a due
date, as an application for unlimited bail can only be considered once the inquiry is
over. The highest court defended its ruling by noting that, while investigating a
suspected crime, “the Court of Session or High Court” does not yet have all of the facts
necessary to determine whether or not to award anticipatory relief. After an
investigation has advanced or charges have been filed, the normal court should decide
what to do depending on the evidence offered to it, as per the Supreme Court’s ruling.
An anticipatory bail order can only be in effect for a specific amount of time, and it will
often expire when that time ends or is extended.29

The Salauddin decision might not have established the right legal precedent
for two reasons, “i) It is possible that it is per-incurium since it did not consider the law
that the Constitution bench established in the Sibbia case, and (ii) It’s possible that the
court’s decision failed to adequately take into account the relevant factors, the
examination that was allowed while deciding on an application under Section 438 of
the Code, and the breadth of that provision.”30

It is well established that the factors taken into account by the court when
deciding whether or not to give “anticipatory bail” are very similar to those taken into
account when deciding whether or not to grant ordinary bail. 31
Therefore, it’s
reasonable to assume that a standard bail application and an anticipatory bail
application are equivalent. Supreme Court justices in the Salauddin case would have
been in the dark about the character of the evidence against the applicant even in a
routine bail application.

Despite what one might think upon first glance, the ratio in Salauddin (Supra)
is correct, the principles given out therein were adopted in a number of judgements39
despite Sibbia case.

29
Salauddin Abdulsamad Shaikh v. State of Maharashtra(1996) 1 SCC 667
30
Ibid.
31
Ibid.
32
Kamlesh v. State of Maharashtra, Cri. Appln. Nos. 3347 to 3349 and 3458 of 2006.
33
“K.L. Vermav. State and Anr., 1998 (9) SCC 348; AdriDharan Das v. State of West Bengal, 2005
(4) SCC 303; NirmalJeet Kaur v. State of M.P. &Anr. 2004 (7) SCC 558; HDFC Bank Limited v.
J.J. Mannan, 2010 (1) SCC 679; Satpal Singh v. the State of Punjab, 2018 SCC OnLine SC
415;Kumar Yadav v. Ravindra Kumar, 2008 (1) SCC 632.”

22
 Subsequently, Siddharam Satlingappa Mhetre v. State of Maharashtra34 ,
redirected legal attention to this issue since the Apex Court examined Section 438 in
the context of individual liberty. The Court reiterated that safeguarding people’
individual rights was the principal goal in drafting Section 438 of the code. Although
the decision in Sibbia (Supra) was known to the bench, they were unaware of Salauddin
(Supra) and consequently made that and any future decisions per incuriam. The
Supreme Court determined that anticipatory bail orders should not have a set expiration
date since Section 438 does not impose such a limitation.

In the case of Sushila Aggarwal v. State (NCT of Delhi)35, a five-judge panel

of the Supreme Court quickly reversed the aforementioned dissenting opinions and
upheld the accused’s right to anticipatory bail, which should never be limited to a
specific duration but instead continue indefinitely. This decision overturned the
precedent set in “Siddharame” (Supra).

Additionally, it was established that anticipatory bail orders typically remain

in effect until the accused is presented to the court. At the time of filing of charges but
prior to the conclusion of the trial. The court has the discretion to reduce the duration
of anticipatory bail in specific cases.

The Apex Court appeared to consent with the Constitution Bench’s findings and
judgement in Sibbia (Supra), thus it upheld those rulings. The Apex Court has also
ruled that an individual seeking anticipatory bail must provide precise evidence linking
them to a single crime and explaining why they fear being apprehended. It was
emphasised that “in deciding whether or not to impose restrictive conditions, the court
should take into account the seriousness of the crime”, the defendant’s role inthe
incident, the chance of him affecting the investigation’s trajectory, the likelihood of him
tampering with evidence, and the defendant’s likelihood of fleeing. In addition, the
Supreme Court’s conclusion included a set of guiding principles, also includes the
notion that “the investigating agency or police may ask the court that issues the
anticipatory bail to order the defendant’s arrest under Section 439 (2) in the event” that
the defendant fails to comply with any of the terms of the release.36

34
AIR 2011 SC 312.
35
2018 SCC Online SC 531.
36
Ibid, at paragraph 1(4) and 1(9).

23
 The Apex Court while delivering its verdict in Moti Ram v. State of Madhya
Pradesh37, held that the definition of the term ‘bail’ includes both release on personal
bond as well as with sureties. According to this definition ‘bail’ refers only to release
based on monetary assurance– either one’s own assurance or sureties by the third parties
and this case laid down the “Bail not Jail” and bail is rule jail is exception, which is
dominating the Indian Criminal Justice System till today.

Indian Law on Procedure of Bail:

The Cr.P.C. deals with and provides for the processes and procedure of ‘bail’
under sections 436 to 450. Given below is a quick snapshot of the most important
sections dealing with bail:

Section 436: “In what cases bail to be taken– This section provides that a person
accused of a bailable offence shall be released on bail, while awaiting trial or appeal.”

Section 437: “If the crime in question is not one for which bail is typically
granted— The accused may be eligible for release under this provision if they meet
specific requirements, such as the seriousness of the charge, the strength of the
prosecution’s case, and the likelihood that the accused will evade justice.”

Section 438: “Bail should be granted to the individual who is suspected of being
arrested– A person may apply for anticipatory bail under this clause if they believe they
will be arrested for an offence that is not normally bailable.”

Section 439: “The High Court or the Court of Session has the authority to give
bail to an accused person, subject to specific conditions, even in cases when the offence
is not bailable, as stated in this section.”

Section 440: “Amount of bond and reduction thereof– This section provides
for the amount of bond that an accused person needs to furnish to secure bail and allows
for the reduction of the amount under certain circumstances.”

36
AIR 1978 SC 1594.

24
 Section 441: “Bond of accused and sureties– This section specifies the
requirements for a bail bond and the role of sureties in securing the release of the
accused.”

Section 442: “Discharge from custody– This section provides for the discharge
of an accused person from custody on the fulfilment of the conditions of the bail bond.”

Section 443: “Power to order sufficient bail when the first taken is insufficient–
This section allows the court to order the accused to provide additional bail if the first
bond is deemed insufficient.”

Section 444: “Discharge of sureties– This section provides for the discharge of
sureties from their obligations under the bail bond.”

Section 445: “Deposit instead of Recognizance– This section allows the accused
to deposit money or property instead of furnishing a bail bond.”

Section 446: “Procedures when the bond has been forfeited– The processes to
be pursued in the event that an accused person’s failure to adhere to the terms of their
bail bond results in the forfeiture of that bond are addressed in this section.”

Section 446A: “Cancellation of bond and bail bond– This section allows the
court to cancel a bail bond or bond of surety in certain circumstances.”

Section 447: “How to proceed in the event of a surety’s bankruptcy, death, or

forfeiture of a bond - The processes to be followed in the event that a surety becomes
bankrupt, dies, or a bail bond is forfeited are laid out in this section.”

Section 448: “Bond required from minor– This section provides for the
requirement of a bail bond from a minor accused of an offence.”

Section 449: “An appeal may be lodged against an order that has been issued
under Section 446 by means of this section.”

Section 450: “The court has the authority to demand payment for certain
recognisances, such as a bail bond or a recognizan, according to this provision.”

25
 “Section 438 of the Code of Criminal Procedure (Cr.P.C.) is commonly known
as the guarantee of bail in advance. If you are facing arrest for a crime for which bail
is not an option, this is a crucial legal protection you have. The granting of bail to an
individual who is wanted by the authorities is outlined in this section.”37

Indian Law on Procedure of Anticipatory Bail:

The Indian Criminal Procedure Code addresses anticipatory bail under Section
438. The provision known as “anticipatory bail” allows a individual to apply for bail
before they are even arrested. The persistence of this clause is to protect “the right to
personal liberty” of every individual. For example,

“1. Who can apply for anticipatory bail?

Anticipatory bail is available under Section 438 of Cr.P.C. for anyone who has
a reasonable fear of arrest for a non-bailable offence. Before the arrest or after the arrest
but before the trial begins, the defendant may submit a bail application.”

2. How to apply for anticipatory bail?

The individual requesting anticipatory bail may submit “a written application”

to either “the High Court or the Court of Sessions”. Include the following details in your
application:

“The name and address of the person seeking anticipatory bail.

The details of the offence for which the person apprehends arrest.

The grounds on which the person seeks anticipatory bail.

Reasons for believing that the person may be arrested for the offence.

Any other relevant information.”

3. What factors are considered while granting anticipatory bail?

If one person is seeking anticipatory bail, the court will take into account the
following factors:

• “The nature and gravity of the offence.

37
Ibid.

26
 • The possibility of the person fleeing from justice.

• The likelihood of the person tampering with evidence or witnesses.

• The person’s antecedents, character, and social status.

• The likelihood of the person repeating the offence.”

4. “Conditions that may be imposed while granting anticipatory bail”.

When granting anticipatory bail, “the court has the discretion to attach
conditions”. The following are examples of such circumstances:

• “The person must appear before the police for questioning whenever required.

• The person must not leave the country without the court’s permission.

• The person must not tamper with evidence or witnesses.

• The person must cooperate with the investigation.

• The person must surrender before the court on the date and time specified.”

5. What happens if the person is arrested after the grant of anticipatory bail?

If the defendant is arrested after “anticipatory bail” has been granted, the
defendant must be released on “bail” after posting bail. Conditions established at the
time of anticipatory bail issuance may be maintained or revised at the court’s
discretion.

6. When can anticipatory bail be cancelled?

If the defendant breaks the terms of their bail, the court can revoke the release
on anticipatory release.

Future research will examine the specific implications of this provision for our
criminal legislation and criminal justice system. It is illuminating to examine the
situation in the Indian state of Uttar Pradesh (UP), where the legal community has
long debated pre-arrest bail and related issues, and where the reinstatement of this
provision–which was temporarily removed in 1976 during an emergency–has been a
persistently advocated reform. For the first time in 43 years, the Indian state of UP
revived “the Anticipatory Bail provision in June 2019.” Section 438 of the Cr.P.C., as
amended and reintroduced in the Indian State of UP, is reproduced here.
27
 “Section 438. Direction for grant bail to person apprehending arrest–(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 theCourt 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

(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested;

(v) either reject the application forthwith or issue an interim order for the grant of
anticipatory bail:

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, arid 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 todissuade
him from disclosing such facts to the Court or to any police officer,

28
(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 sub–section (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.

(3) Where the Court grants an interim order under sub–section (1), 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 sub–section (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 (1), within
thirty days of the date of such application;

(6) 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 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.

(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.”

29
 The Criminal Procedure Code of 1898 does not have a provision similar to
“Section 438 of the Code of 1973, which allows for anticipatory bail”. The HCs have
inherent jurisdiction and have issued “anticipatory bail” in some situations, contrary
to the commonly held belief that such authority does not exist. In its “41st Report, the
Law Commission” suggested adding a clause allowing “the higher court judiciary and
the Court of Session to provide anticipatory bail” to the Code.

Based on its findings, the Commission has determined that powerful individuals
attempting to embarrass or gain an advantage over their rivals by falsely implicating
them in cases is the leading cause for the issuance of “anticipatory bail.”It seems like
this style is becoming more popular lately. It seems unreasonable to ask the accused to
undergo treatment, remain in prison for a specific number of days, and then apply for
release if the charges against him are baseless and it is logical to assume that he will
not abscond or abuse his freedom while out on bond.

In “Gurubaksh Singh Sibbia v. State of Punjab”38, a Constitutional Bench

of five judges ruled that “the right to bail as enriched in Section 438 of the Criminal
Procedure Code falls under Article 21 of the Constitution, which protects individual
liberties, and as such, Section 438 of the Cr.P.C. must be interpreted expansively of
Section 438 Cr.P.C. in the light of Article 21 of the Constitution”.

The court determined that Article 21 of the constitution must be considered

when interpreting Section 438. It further stated that “anticipatory bail” is a privilege
that is not time-bound, although the court might impose conditions based on the specific
circumstances.

Whereas, in Salauddin Abdulsamad Shaikh v. State of Maharashtra39, the

Apex Court reversed its previous ruling and said, “granting of anticipatory Bail should
be limited by time.” When it came to awarding “anticipatory bail”, the Apex Court
finally provided clear guidelines in Siddharamcase.40

In addition, when a court gives “anticipatory bail”, it orders that a defendant be

unrestricted on bail and only that they are apprehended; “in other words, an order

38
(1980) 2 SCC 565.
39
1996 SCC (1) 667.
40
SiddharamSatlingappaMhetrev. State of Maharashtra. (2011) 1 SCC 694

30
granting anticipatory bail” does not go into effect until after an arrest has been made.
Arrest by law enforcement or other investigative authorities is the primary event that
activates an anticipatory bail order.

The following is an analysis of the three sub-sections that make up Section

438:

Any person who has probable grounds to suspect that they will be arrested for
a crime for which bail is not an option may “obtain anticipatory bail” under sub- clause
(1). This is where the legislation makes it very clear that an ABA can only be requested
in cases involving extremely serious crimes when bail is not an option. In order to
request bail in a “High Court or Session Court”, which can instruct the investigative
authority that ordered your arrest, you must have been arrested for an offence that does
not meet the criteria for bail.

However, in 2005, Parliament passed an amendment urging judges hearing such

an application to use greater caution before issuing any relief. The new set of criteria
takes into account things including the applicant’s criminal record, if they intend to try
to escape trial by fleeing if granted ABA, and whether the accusations in the “FIR” are
made by the intent to harass “the application of ABA.” If the ABA application is
rejected by the relevant court or if interim relief is not granted while the application is
pending, “the investigating agency” is allowed to make an arrest “based on the
accusations in the application” without a warrant, as stated in sub-section (1). Hoevere,
the legislature has secretly granted investigative authority the ability to accept the
applicant’s apprehensions as evidence of a crime and to arrest him for questioning of
those suspicions.

“The Public Prosecutor and the SP/DCP” must be given at least 7 days’ notice
before the final hearing of an application for interim relief, per a new Sub-section1 (A)”
added in 2005. This provision ensures that the Prosecutor has adequate time to prepare
a defence of the application. By including this provision, Congress made it abundantly
clear that, “an application under this section cannot be disposed of unless and until the
Public Prosecutor is heard, even if the court is not immediately rejecting the relief for
anticipatory bail and if the court has prima facie found any merits in the application.”

31
 If the applicant is requested by the public prosecutor to attend the final hearing or the
order-making process in the ABA case and the court grants the request, then the applicant
must be present at both events. In 2005, this clause was amended to include it.

In sub-section 2 “if the applicant is to be provided with interim protection, this

sub-section specifies that certain conditions be imposed on him.”

In sub-section 3 “if a person is granted bail under this clause and is thereafter
arrested without a warrant, he must be freed on bail immediately. A bailable warrant
will be issued if the magistrate decides to take cognizance and issue a warrant against
the suspect.”

In Badresh Bipinbai Seth v. State of Gujarat.41, the Apex Court determined

that “the right to bail, as outlined in Section 438 of the Code, is a fundamental right
safeguarded by Article 21 of the Constitution. Consequently, Code Section 438 must
be interpreted broadly in accordance with Article 21 of the Constitution.”

According to the Code, “an anticipatory bail” is a procedure that allows the
defendant to post bail before he is actually arrested for the specified charge.
Considering all of that the highest court has decided that these two parts are worthy of
celebration and has joined them. The court observed with satisfaction that the
legislature has safeguarded the fundamental right of the citizen by enacting the
provision for grant on Anticipatory Bail, citing Section 438 and Article 21.

1.1.1 Prerequisites for Grant of Anticipatory Bail:

“An individual’s right to freedom” cannot be infringed upon while they await
trial, which is why “anticipatory bail” is granted. Certain circumstances must be met
in order for “anticipatory bail” to be granted. The petitioner must be reasonably fearful
of a remand to a crime for which bond is not an option. Considerations such as “the
gravity of the offence, the likelihood of evidence manipulation”, and the significance
of a custodial interrogation are also considered by the court.

There are primarily two prerequisites for filing for “Anticipatory Bail” with the
proper court.

41
(2016) 1 SCC 152.

32
 1. It must not be a bailable offence for the bail to be requested.

2. Arrest by law enforcement for a crime with no chance of bail should cause
serious concern.

In general, crimes fall into one of two categories: those that are “bailable” and
those that arenot in the former case, the accused is entitled to bail regardless of the
circumstances, while in the latter, the decision about the accused’s release on bond is
“left to the discretion of the court hearing the bail application”. Before their regular bail
hearing, a person who is likely to be arrested might ask for anticipatory bail to remain
free. Someone can ask the court for bail before they’re even arrested if they have reason
to believe the police will arrest them for an offence that cannot be released on bond.
An individual who has been granted anticipatory bail is required to present the arresting
authorities with a copy of the court’s order prior to their release on bond. “Anticipatory
bail “may be requested by any person suspected of committing or being implicated in
a crime or offence for which “bail”is not normally granted.

An individual can request anticipatory bail in India if their arrest warrant does
not include a crime that is normally eligible for bail. Section 438 of Cr.P.C. details the
steps to apply for and get anticipatory bail. Some essentials of “the Indian system of
anticipatory bail are as follows”:

1. Purpose and Protection: The purpose of “anticipatory bail” is to protect

individuals from being harassed, arbitrarily arrested, or otherwise deprived of
their freedom due to unfounded allegations. Its purpose is to safeguard people’s
constitutional rights and stop them from being held indefinitely without cause.

2. Applicability: “A person can apply for anticipatory bail” if they believe they
will be arrested for an offence that does not qualify for bail. Pre-arrest bail
permits the defendant to apply for legal protection before being arrested.

3. Application Process: Anticipatory bail applications can be filed with either “the
High Court or the Court of Sessions”. Details like the nature of the crime, why
bail is being requested, and why an arrest is being anticipated should all be
included in the application.

33
4. Judicial Discretion: An application for anticipatory bail might be granted or
denied by the court, based on the details of each individual case.

5. Factors Considered: The court considers the seriousness of the crime, whether
the defendant is likely to flee from justice, whether there is a risk that the
defendant will tamper with evidence or influence witnesses, and whether the
defendant has a history of violent or law-breaking behaviour.

6. Imposition of Conditions: The court may put conditions on the defendant’s

release on anticipatory bail to ensure he or she would cooperate with the
investigation and surrender if required. Passport surrender, surety posting,
regular reports to the police station, and witness protection are all examples of
conditions that could be imposed.

7. Duration and Scope: The protection from arrest afforded by anticipatory bail
is usually transitory and limited to a predetermined time frame. If the
investigation or trial is still proceeding when the time limit expires, the
defendant may have to apply for ordinary bail.

8. Cancellation of Anticipatory Bail: If the defendant fails to appear for their trial
or otherwise behaves inappropriately, the court has the authority to revoke his
or her anticipatory bail.

9. Jurisdiction under “High Court and Sessions Court”: Anticipatory bail

applications can be filed with either “the High Court or the Court of Sessions”,
in proportion to the gravity of the charged offence. The HC has broader
jurisdiction and can issue an anticipatory bail even in matters involving the IPC
or other specialised statutes.

Looking for”anticipatory bail in India” requires the assistance of an attorney

or advocate who can provide precise counsel and guidance according to the individual’s
situation. Anticipatory bail regulations are case-specific, therefore their interpretation
and application may change.

Both “the High Court and the Session Court” have jurisdiction over anticipatory
bail hearings, but in practise, bail applications are often submitted to the Sesssion Court
first. The wording “if it thinks fit” in section 438 set it apart from other bail provisions,
and indicate that courts have been given discretionary authority

34
to award anticipatory relief even for offences that are not normally considered
bailable.

Objectives of the Research:

The laws of Bail, including pre-arrest Bail, are governed by different sections
of our Criminal Law. “Anticipatory Bail” is another name for Pre-arrest Bail. The
reason of this research, which is summarised here, is to examine the following
objectives on Anticipatory Bail:

A) “What is the relevance of the provision of Anticipatory Bail in our criminal law?
To expand this question further, when we already have the regular bail
provisions in Cr.PC, Why is it required to have a provision for bail before
anyone is arrested, i.e. why a bail provision is required just on apprehension of
arrest?
B) Does this provision safeguard the personal liberty of those who are falsely
accused and are made to languish in jail for no reason till the final decision of
their innocence is pronounced?

C) Does this provision give a ticket to the accused person/s to flee and roam around
the world freely till the process of trial continues and enjoy the delay of
prosecution, bringing to fore the concept of ‘justice delayed is justicedenied!’42.

D) With what intent legislators framed these provisions and how over the years it’s
interpretation and construction by the judiciary has given varied meanings and
modified its application?

E) Analysis of various features of the Anticipatory Bail Provisions by studying

prominent cases decided over the years including cases that are based on women
laws.

F) Studying further scope if any for amending the provisions of bail and providing
to the researcher an opportunity perspective and suggestion for effective
implementation of the provision.”

42
AIR 1977 SC 2147

35
 Hypothesis:

Hypothesis has been defined in different ways and in different words but the
main crux remains the same i.e. assumption / proposition that will form the basis of any
research and will help in analysing and finally concluding the research at hand.
Hypothesis is not necessary in every research especially in doctrinal researches like
the one at hand, because it doesn’t need to be proved on statistical data. Moreover in
Analytical studies and doctrinal researches, statistical data is used only to enhance the
knowledge base and not for the testing of a theory. Doctrinal researches like this
research are not for quantitative analysis. Still as the hypothesis helps to give direction
to a study, the researcher have formulated the hypothetical statement and shall prove it
through my analysis of various case laws and commentaries. Thus, the researcher’s
hypothetical statement is as follows: -

1. “Judicial interpretation of Bail matters especially the Anticipatory Bail matters

has evolved the criminal law system and over the years it has synthesised into
a combination of legislative intent and judicial activism.”
2. “Considering the condition of prisons and inmates therein in our country,
Anticipatory bail provisions do provide a way through for balancing the line of
personal liberty and societal interest.”

1.2 Research Methodology:

The research methodology adopted throughout the project is doctrinal.

Materials have been referred to in general sense. The sources for the project study
are Judgments / case laws, legal commentaries, Books, Articles, and also other web
based resources for collecting legal news, specific judgments etc. Research Material
has been gathered from primary sources in the form of judgments and Bare Acts,
Statutes and Rule books for studying provisions of bail and its interpretation by the
judiciary. The development over the years and consequences of extraneous factors
affecting the criminal justice administration, research material from secondary sources
has been relied upon e.g. books by eminent authors, legal articles by law luminaries.

Significance of the Study

The laws are ever-changing since our culture is also. It functions inside a
detailed social framework. The law has a significant impact on shaping and controlling
36
societal standards and attitudes towards behaviour. Yet, as these standards evolve over
time and across locations, it is crucial that the law be flexible enough to accommodate
his new social order.
Here, legal research is crucial for determining the law, clarifying legal
ambiguities, pinpointing directions’ weak spots, and critically evaluating orders to
guarantee stability, coherence, and consistency, among other things. Legal research is
carried out for a variety of reasons. Let me list them:

It is crucial to identify which laws are now relevant to the scenario because there
are many rules and regulations in society. Finding a specific statute or court
ruling at a given moment is not simple. Legal research simplifies the task at
hand. It greatly improves the process of determining the law and makes it easier
to understand.

The old adage that a law is impregnable until reversed is not always accurate.
Legal study might assist clear up some confusion and fill up some blanks. In
responding to questions raised by such gaps and ambiguities, the law is reactive
in character while also being proactive. Coherence, stability, andconsistency
can be ascertained with its aid, in addition to ambiguity removal.

Predicting the future is another benefit of legal research. The societal elements
that have an indirect effect on the lawmaking process can be better understood
as a result. By comparing the ideal of law with social reality, social auditing of
law can reveal where the two systems diverge. Further, it aids in proposing
changes supported by analytical, comparative, and historical evidence.

From now on, researching the law is essential. If we want to grasp the
complexities of complicated laws, we must be familiar with how to simplify them.
Secondary materials, including books, papers, journals, and comments, are a good place
to start. Primary sources, such as legislation, constitutions, etc., should beconsulted
after secondary sources. Improving one’s understanding of these sources is the first step
in analysing and finding useful information.

Limitations of the Study:

Limitations are a part of life being human and so the researcher do understand
that while doing this research on the stated topic, the researcher may be limited by
37
various factors that are beyond control. Therefore, humbly note it down that this
research being a doctrinal / analytical research, it will not have;
1. Subsets of quantitative analysis, i.e. any empirical findings and conclusions
based on previous data available.

2. This research shall not primarily be based on personal observation of prisons

and inmates/ prisoners and their personal interviews.

3. This research cannot include all the states of our country and the position of
Anticipatory Bail in these cannot be studied in the limited time and comparisons
across the country is not feasible.

Thus, this research shall be based on case laws, judgements, legal commentaries
on provisions of “anticipatory bail”, law commission reports and data associated to the
prisons and prisoners and those on bail and parole. The scope of study is not about any
numerical analysis of how many accused got bail or how many accused were sentenced
to imprisonment. Rather this study scope is as regards the impact of “anticipatory bail”
provisions on societal interest and a study to show legislative as well as judicial
perspectives. In short this study is aimed at to be a compendium of legal reference for
the Anticipatory Bail taking into account legislative and judicial perspectives.

38
 CHAPTER–II

LEGAL ASPECTS OF THE CONCEPT OF ANTICIPATORY

Introduction:

Before discussing, analyzing, researching deciding any legal concept, it

becomes mandatory to the reader, researcher and Court, to now the roots, stem and
branches of that legal concept. The term “bail” and “anticipatory bail” are so common
now-a-days that the urban elite to the rustic, rude and rural illiterate folk of villages also
know and discuss this concept. This act as “protection weapon or guard to arrow filled
with ammunition, to against the opponent” and diffuse the efforts and attempt of the
police and administration for torturing as well as extorting from the accused/arrested/
or detainee. The above explanation shows the utility, relevance and necessity of this
concept. Hence, an attempt has been made in this chapter to discuss the various judicial
aspects of this concept under Indian as well as foreign judicial systems from where the
roots of Indian legal system are connected.

It will be relevant here to mention the pertinent observations made by Justice

V.R. Krishna Iyer on the issue in the following words, “The issue of bail is one of
liberty, justice, public safety and burden of the public treasury, all of which insist that
a developed jurisprudence of bail is integral to a socially sensitized judicial process.”43

The importance of “the concept of anticipatory bai”l can be highlighted in these

following paragraphs before going into depth of the concept. It is fundamental to the
corpus of legislation that aims to protect the rights and freedoms of individuals who are
facing criminal accusations. If someone is worried they will be arrested for a non-
bailable offence before their actual arrest, they can ask for anticipatory bail. This
provision aims to safeguard the fundamental rights of individuals and prevent potential
abuse of power by law enforcement agencies. In recent years, the debate surrounding
the effectiveness and application of anticipatory bail has sparked intense discussions
among legal scholars, policymakers, and the general public. In addition,

43
GudikantiNarasimhuluv. Public Prosecutor, (1978) 1 SCC 240.

39
“the rights of the accused are effectively balanced with the purposes of justice
throughthe use of anticipatory bail.”

The Supreme Court has settled a split among higher courts by ruling that, in
“extraordinary circumstances,” judges can release an accused “person from arrest” even
if they have been denied “anticipatory bail.” Therefore, this discretion can’t be
exercised arbitrarily; rather, the judge’s decision must be well-reasoned.

The case was related with hearing appeals from two High Court judgements
that, although denying the accused’s request for anticipatory bail, had yet required them
to surrender to the trial court and file a formal bail application within 90 days and
shielded them from any coercive action in the meantime.

Purpose of Anticipatory Bail:

The persistence of “anticipatory bail under Section 438 Cr.P.C.” is to prevent

an individual’s arrest and subsequent detention from humiliating or otherwise unjustly
harassing him. But while facing imminent arrest, one must balance the public interest
with one’s right to personal liberty.44

The legal concepts, theories, and philosophies that inform “the concept of
anticipatory bail” are referred to as its “jurisprudential aspects.” The grant and
interpretation of “anticipatory bail” are shaped by the larger legal context and concepts
that are discussed below. Key components of anticipatory bail as established by case
law are outlined below:

2.1 Pre-requisite of Anticipatory Bail:

A pillar of the criminal justice system is the presumption of innocence, a

fundamental premise in criminal law. A person is presumed innocent until proven guilty
beyond a reasonable doubt, according to the presumption of innocence. This rule
prevents people from being automatically assumed guilty after an arrest or charge has
been levelled against them.

The assumption of innocence is essential in the framework of “anticipatory

bail.” When a person requests anticipatory bail, they are essentially protesting their

44
P. Chidambaram v. Directorate of Enforcement, AIR 2019 SC 4198.

40
innocence and hoping to avoid detention. When deciding “whether or not to grant
“anticipatory release, the court always assumes the accused is innocent and protects
their “rights and freedom” by releasing them on bail until their guilt is proven.

The prosecution now has the burden of proof to show the defendant’s guilt
beyond a reasonable doubt as anticipatory bail is granted, because the defendant is
deemed innocent until proven guilty. The court decides on the issue of anticipatory bail
after hearing both the prosecution’s and defense’s arguments and reviewing any
relevant evidence. Both the reliability of the prosecution’s evidence and the likelihood
that “the accused committed the crime are taken into account”.

In anticipatory bail hearings, the court’s principal concern is protecting the

petitioner from arbitrary detention. Nevertheless, the court takes into account criteria
such “the nature of the offence,” the accused’s degree of responsibility, the reliability
of the initial evidence, and the possibility that the accused may attempt to tamper with
or conceal evidence.

Anticipatory bail protects an individual’s rights and freedoms by maintaining

“the presumption of innocence pending trial”. While still being deemed” innocent
until proven guilty”, the accused can go about their daily lives, assist the investigation,
and submit their case to the court.

It’s value noting that different countries and legal systems may have varied rules
on anticipatory bail” and it’s grounded in a diversity of legal theories and principles,
some of which may be impacted by the overarching legal philosophy and ideals of a
given country’s legal system.

2.2 Understanding Anticipatory Bail in India:

As a well-established norm in many legal systems, the idea of bail is central to

criminal law in India. In the legal system, “bail refers to the process” of securing a
defendant’s release from jail pending trial or appeal in exchange for posting collateral
guaranteed to return them at their scheduled court appearance. The bail or, more
properly, the bail bond amount is determined by the court with authority over the
defendant. Cash, title documents, or a bond from a wealthy individual or a reputable
bonding organisation can all be used as security. If the person out on bond doesn’t

41
turn himself in by the due date, the bail money will be lost. The result to release an
individual on “bail is left to the discretion of the courts” when it comes to criminally
charged individuals.

The term “bail” is defined in the Law Lexicon 45 as the promise of an individual
to appear in court in return for their release from custody while a trial or inquiry is
underway. The persistence of posting “bail is to facilitate the release of an individual
from official custody”, with the stipulation that the defendant must come before the
court at the appointed time and place and submit to the authority and conclusion of the
judge46, as established by law.

According to English Dictionary, the word “Bail” has been defined as: “Bail
is a sum of money that an arrested person or someone else puts forward as a guarantee
that the arrested person will attend their trial in a law court.”

The word “bail” has been defined in the Black’s Law Dictionary, as: “A
security such as cash or a bond; esp., security required by a court for the discharge of
a prisoner who must appear in court at a future time.”47

According to American Bar Association define word of “Bail” as “Bail is the

money a defendant pays as a guarantee that they will show up in court at a later date.
A failure to return triggers the bond obligation and allows the court to keep any money
given as security.”

According to Wharton’s Law Lexicon, 48

defines bail as:”to release an
individual from custody after their arrest or incarceration, subject to the provision of
security in the form of an appearance guarantee at a predetermined time and location;
this security is known as bail. The individual in question is surrendered to the
individuals who pledge to post bail in exchange for the release of the arrested or
incarcerated party, allowing them to legally protect him from potential dangers such
as his escape.”

45
Law Lexicon by RamanthIyer, (3rd ed).
46
Black’s Law Dictionary 177 (4th ed.)
47
Black’s Law Dictionary, 9th Edn., pg. 160.
48
Wharton’s Law Lexicon, 14th Edn., pg. 105

42
 According to Halsbury’s Laws of England– “the effect of granting bail is not
to set the defendant (accused) free, but to release him from custody of law and to entrust
him to the custody of his sureties who are bound to produce him to appear at his trial
at a specified time and place. The sureties may seize their principal at any time and
may discharge themselves by handing him over to the custody of the law and he will
then be imprisoned.”

In “Moti Ram v. State of Madhya Pradesh”49, the SC provided a succinctbut

illuminating of bail define, and holding that “the definition of the term bail includes
both release on personal bond and with sureties.”

Therefore, this meaning, the word “bail” can only mean release after posting a
monetary guarantee, either personally or through third-party sureties. “Anticipatory bail
under Section 438 of Cr.P.C.” is an exemption that will be discussed in greater depth
below and is issued in advance of an arrest.

In Kamlapati Trivedi v. the State of West Bengal50, the SC provided a much

broader definition and sympathetic of “the concept of bail.” In that case, the court noted
that “bail” is a method for achieving a equilibrium between two fundamental human
values – “the accused’s right to personal freedom and the public interest”.

“A bailable offence is defined as an offence that is either shown as bailable in

the First Schedule or is made bailable by any other law that is currently in
effect.”However, when considering, “a non-bailable offence” is any other offence. The
term bail is not defined in section 2(a) of Cr.P.C. of 1973.51The procedures for posting
bail and bonds in criminal proceedings are also detailed in sections 436–450. No
amount of security can be specified by the Cr.P.C. to guarantee the accused’s release.
The court has discretion over the bail amount.

A person can nonetheless apply for pre-arrest bail through anticipatory bail,
even if the charges against them do not normally qualify for bail. By allowing people
to prearrange their release from jail, it safeguards them from wrongful detention on
trumped-up allegations.

49
(1978) 4 SCC 47.
50
1980 (2) SCC 91.
51
Section 2(a) Cr.P.C., the Criminal Procedure Code, 1973

43
 The following are some most important aspects to grasp when studying about
anticipatory bail, these are:

1. Application: In order to secure anticipatory bail, an individual must first submit

an application to the relevant court. The individual who is anticipating arrest
(the “applicant”) makes the application. The application describes the
circumstances surrounding the request for bail and includes any pertinent
information.

2. “Reasonable Apprehension of Arrest”: The applicant must show that they have
a “reasonable apprehension” of arrest, which is the fear or belief that they will
be apprehended for an offence that cannot be released on bond. The suspicion
must have a rational basis and be backed up by evidence. “Anticipatory bail”
cannot be granted based on a generalised sense of danger.

3. Court Proceedings: After filing “an application for anticipatory bail”, the court
will hold a hearing to review the request. The hearing is where “the prosecution
“and defence submit their case to the judge. Among other things, the court takes
into account the gravity of the crime, the accused’s potential involvement, the
quality of the evidence, and the overall merits of the case.

4. Grant or Denial of Anticipatory Bail: In each individual case, the decision to

grant anticipatory bail rests with the court. If the petitioner presents compelling
evidence and reasonably fears arrest, the court may grant anticipatory bail. The
court may order you to do things like give up your passport or appear in court
as component of the study.

5. Protection from Arrest: The accused is granted protection from arrest with
anticipatory bail until the court reviews the request or issues further directions.
If the equal crime for which “anticipatory bail” was granted is later arrested
again, the applicant may be subject to extra detention unless the arresting
authority is presented with the bail order.

The court determines the issuance of “anticipatory bail” depending on the

specific facts of each case; it’s not a right that is automatically granted. A compromise
between the free will of individuals and the needs of the judicial system is necessary
to avoid its exploitation and guarantee its equitable administration.

44
 Evolution of Anticipatory Bail in Criminal Jurisprudence:

Anticipatory bail/pre-arrest bail regulations should be viewed in the framework

of the historical development for “the provision of bail” from its earliest iterations to
the present day.

“Bail” may be found back to the Middle Ages, specifically to 1215, when King
John of England created the earliest known written constitution, commonly known as
the “Magna Carta.” Clause 39 of Magna Carta, roughly translated as “bail,” is where
the practise first appeared “No free man shall be seized or imprisoned, or stripped of
his rights or possessions, or outlawed or exiled, or deprived of his standing in any
other way, nor will we proceed with force against him or send others to do except by
the lawful judgement of his equals or by the law of the land.” When reading this
provision, remember that a person’s freedom and movement are protected unless and
until a definitive judgement has been rendered in line with “the laws of the land”. By
decoding this clause, we find a strong connection to the bail rules in the Cr.P.C.52

Codified Law on Anticipatory Bail:

A person who is expected to be arrested might petition for “anticipatory bail”

before their actual arrest. Aiming to strike an equilibrium between the needs of justice
and those of the accused, this concept has evolved and undergone revisions over time.
Prior to understanding how “anticipatory bail” has evolved in India, it’s essential to
investigate its historical contextual and the numerous legislative provisions and court
decisions that have influenced it.

The Cr.P.C. 1898 did not deal with anticipatory bail. Judgmental interpretations
of Articles 496, 497, and 498 of Cr.P.C. of 1898 gave rise to “anticipatory bail.” In
Section 496, when discussing the grounds for granting bail, we went over all of them.
Within the scope of Section 497, we discussed when bail canbe requested for offences
that would normally not be. The authority of “the High Court or the Court of Session
to order admission to bail or a reduction of bail” was addressed in Section 498. The
idea originated with “recommendations made by the

52
Pushkraj Deshpande, “India: Anticipatory Bail and Its Laws”, on 15th Sept., 2020, available at:
https://www.mondaq.com/india/crime/982502/anticipatory-bail-and-its-laws

45
Law Commission”, who saw it as a way to better safeguard people’s rights. Paragraph
39.9 of “the 41stLaw Commission Report from 1969” is when the idea initially
appeared.74It has observed,

“The idea of directing a person’s release on bail before their arrest (sometimes
called “anticipatory bail”) was thoroughly examined by us. Despite differences in
opinion among judges, the general consensus is that the current Code does not give
courts the authority to issue ‘anticipatory bail’. The major cause why ‘anticipatory
bail’ is necessary is because powerful people may sometimes try to frame their
competitors in false accusations in order to bring shame on them or to getthem held in
jail for a few days for other reasons. This trend has been steadily increasing as of late,
thanks to the heightened focus on political rivalry. In every scenario however the most
blatantly untrue, it seems unfair to demand that an accused individual submit to arrest,
spend a few days in prison, and then request bail.Reasonable suspicion that the accused
will not misuse his freedom or flee the country while free on bond is necessary.”53

The 1969 report was the impetus for the addition of Section 497A, which
addresses the directive “to provide bail to an individual detained for a crime for which
release is often not authorised. The authority to grant bail in this specific case lies with
the High Court or the Court of Session, depending on the case at hand. The procedures
outlined in Section 204(1) must be followed by a magistrate when deciding whether to
accept cognizance of a crime. If a suspect is willing to post bail upon arrest or at any
time during police custody for an offence that does not need a warrant, they can be
released on bail.”54

However, anticipatory bail is suggestions made by the 41st Law Commission,

according to part 31 of “the Law Commission of India’s 48th Report (1972)”. It
acknowledged the provision’s validity but emphasised that it should be reserved for
exceptional cases. A final decision on “anticipatory bail” should not be issued without
first informing “the public prosecutor”, and any early ruling should be temporary so
that dishonest petitioners cannot take advantage of it.The Law Commission suggested

53
TariniKalra, “Anticipatory Bail”, September 26, 2022, available at:
https://blog.ipleaders.in/anticipatory-bail/
54
Ibid.

46
adopting the proposed amendment after some discussion and provided the following
remarks.

“A new provision for the granting of anticipatory bail is included under the Bill.
The prior Commission’s recommendation is largely supported by this. We concur that
this would be a helpful feature, however we feel compelled to mention that this kind of
authority should only be used in extremely rare instances. To prevent unscrupulous
petitioners from abusing the provision, we further believe that notification to the Public
Prosecutor should be sent before the final ruling is rendered. The first order is just
temporary. In addition, the pertinent part should clearly state that the court can only
give the directive for reasons that will be documented and if it’s pleased that it’s
necessary for the sake of justice. It’s also convenient to inform the Supdt. of Police
immediately of both the interim and final directives.”

The Commission also recommended expanding the Section to explicitly state

that a judge can only grant such an order in cases where it is deemed essential for the
“interest of justice.” Section 438 of the Cr.P.C. of 1973, a substantially updated version
of Section 447 of the Criminal Procedure Bill of 1970, provides the process for
“granting anticipatory bail.”

Anticipatory bail under Cr.P.C.:

An increase in the number of cases requesting “anticipatory bail” has been noted
in the year following the emergency. Many of the petitioners were powerful figures
who had held significant positions of authority under the state of emergency and who
now feared imprisonment on charges of corruption, misuse or abuse of office, etc., in
the post-emergency era. The wealthy and powerful individuals participating in the
anticipatory bail processes used the law and its mechanism to theirfull advantage. The
approach necessitated that the courts interpret the law with utmostdiscretion, accuracy,
and restraint. Therefore, the development and refinement of the law surrounding
“anticipatory bai”l has been given a boost.

47
 All people of India are granted “the right to life and personal liberty in Article
21 of the Indian Constitution.” A large majority of people agree that it is a basic and
essential human right. Indira Gandhi’s “Section 438” of Cr.P.C. of 1973 established a
procedure for “anticipatory bail”.

In its 41stReport, published on September 24, 1969, “The Law Commission of

India argued for anticipatory bail” to be incorporated Cr.P.C. so that “the High Court
and the Court of Sessions” may issue it. This provision allows for the request for bond
release of a suspect who is facing charges for which bail is ordinarily unavailable. Until
and unless found guilty, no one should be detained under any circumstances, which was
the primary motivation for including this clause.

In cases where an individual has probable cause to believe that “he will be
arrested for a non-bailable offence, he can 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 the court will grant him anticipatory bail” after considering the
following factors: –

the seriousness and character of the charge,

the applicant’s past, including any convictions for cognizable offences and
whether or not he has served time in prison,

the applicant’s potential ability to evade legal action,

in cases when the applicant is being accused of intentionally harming or

humiliating another person, the court has two options: either immediately
refuse “the application or issue an interim order granting anticipatory bail”.55

When a request for “interim bail” is approved by a session or high court. A show
cause notice should be delivered to “the superintendent of police and the public
prosecutor by the court” as soon as possible, supporting the order and providing a
copy of it. This will guarantee that the prosecutor has an equal chance to submit their
position when the application is ultimately examined.

55
Bhaswat Prakash, “Anticipatory Bail: Section 438 Cr.P.C.”, available at:
https://www.legalserviceindia.com/legal/article-6112-anticipatory-bail-section-438-crpc.html

48
 While Section 438 of the Cr.P.C. originally read to allow “the High Court or
Sessions Court to grant anticipatory bail” at their discretion, it intentionally did not
prescribe standards or thresholds for the same. The law on anticipatory bail has since
been modified to provide for various aspects, with the State of Maharashtra amending
the Cr.P.C. (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section
438, which sub-section (1-B) states, “When the Court hears the applicant’s final
request for anticipatory bail and issues its final order, the applicant must be present
unless the Court, upon request by the Public Prosecutor, determines that the
applicant’s absence would prejudice the administration of justice.”56

Eligibility for Anticipatory Bail:

It is possible for some people in India to get anticipatory bail through the court
system. Looking for anticipatory bail requires proof of imminent arrest with the
reasonable suspicion of false accusations for which bail would not be appropriate. So,
they need to have solid reasons or proof to back up their accusation of possible arrest.
Judgements about anticipatory bail are based on a number of criteria, including the
accused’s criminal history, the seriousness of the charges, and the risk that they will
run.

Anyone who has ill will against another individual, fears he may be detained on
false accusations, or is worried that “a false case will be built against him may apply to
the court of Session or the High Court for bail under Section 438 of Cr.P.C., and the
court may, if it sees fit, direct that in the event of such arrest, the person shall be released
on bail”.

Anticipatory bail should not be given to anyone who has been deemed an
absconder/proclaimed criminal under Section 82 of Cr.P.C. and has refused to
cooperate with the investigation. In State of M.P v. Pradeep Sharma57, Apex Court
held that “when a person against whom a warrant had been issued and is absconding
or concealing himself in order to avoid execution of warrant and declared as a
proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief
of anticipatory bail.”58

56
Code of Criminal Procedure (Amendment) Act, 2005, Section 38, with effect from 23-6-2006.
57
(2014) 2 SCC 171.
58
Ibid.

49
 For some non-bailable offences, a person who expects to be arrested may be
given anticipatory bail in accordance with Section 438 before a First Information
Report (FIR) is filed. When someone is arrested, they may request either ordinary bail
or interim bail. Anticipatory bail is when a person is ordered to be released on bail
before their arrest has even taken place.”

The following are examples of conditions that “a court may impose when
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 conditions specified in that sub-section may likewise be imposed

upon bail when granted under Section 437(3).

The Apex Court upheld in a case ofGurbaksh Singh59,a person needed “reason
to believe” in order to apply for “anticipatory bail” in the event of an impending arrest,
and that this “reason to believe” had to be more than just a “belief” or “fear.”

Section 437 discusses when bail can be given for a crime that normally cannot
be released on bond. “If you are arrested or detained by police without a warrant, or if
you are required to appear in court before a court other than the High Court or Court
of Session”, you may be “eligible for bail” if you meet certain conditions:

1) There should be no consideration given to releasing such a person if there is

credible evidence that he is responsible for “a crime punishable by death or life
in prison”.

59
Gurbaksh Singh Sibbia&Ors. v. State of Punjab,AIR 1980 SC 1632.

50
2) The court can release an “accused person on bail” if he or she does not have a
prior conviction for a crime that has a mandatory minimum sentence of seven
years or more in prison or for a crime that is both non-bailable and cognizable.

3) If the individual is a minor, a woman, pregnant, or severely disabled.

4) For any other reason, it is deemed appropriate to discharge the defendant on

bail.

5) If the witness meets all other requirements for release and agrees to follow the
court’s orders, then “the witness may be released, the fact that he or she may
be called upon to identify the accused individual during an inquiry should not
be grounds for denying bail.”

If the accused’s guilt is beyond a reasonable doubt, it means the crime cannot
be released on bond, any court or official may question him at any point throughout the
proceedings. If the inquiry mandated by Section 446A finds insufficient evidence to
establish guilt, “the court or officer in charge of the case may decide to release the
accused on bail with or without sureties”.

The following offences are entitled for bail release: those punishable by 7 years
or more in prison, those falling under “Chapter VI, Chapter XVI, or Chapter XVII”, or
those involving conspiracy or aiding and “abetting in the commission of any offence,
as stated in sub-section (1) of Section 437 of the Indian Penal Code, 1860”. Here are
some examples of conditions that a judge could impose:

To make sure that the bonded individual appears in court as required under the
bond.

To ensure the accused or suspected offender does not commit more crimes of
a similar nature.

A record of the exceptional circumstances must be kept by the officer or judge

when they release an individual on bond pursuant to subsections (1) or (2).

A court that grants bail under sub-sections (1) or (2) retains the authority to re-
arrest a defendant if he or she fails to appear in court as ordered.

“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

51
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.”

A court may grant bail after “a trial for a non-bailable offence” has finished but
before a conviction is given if it finds probable cause to think “the accused is not guilty
of any crime.” The court must release the defendant from custody after he posts a bail
(without sureties) to ensure he will attend to hear the judgement being read.

Cancellation of Anticipatory Bail:

Cancellation of “anticipatory bail under Section 439” Cr.P.C. is a provision that

allows for the revocation of pre-arrest protection granted to an individual. The intention
of this provision is to allow “the court to cancel the bail” if the situation changes or if
the individual abuses it. A court may decide to revoke an individual’s anticipatory bail
if it discovers that they have disobeyed the terms of their release or ifadditional evidence
links them to the crime.

Anticipatory bail can be revoked only by “the Court of Session or the High
Court”, the same courts with the authority to issue it. New events or situations that
develop after the bail may call for its cancellation. Pre-arrest bail is a form of pretrial
release that may be abused if the defendant tampers with witnesses, impedes
investigations, or re-offends after being released. The court can be petitioned torevoke
“anticipatory bail under Section 439 of Cr.P.C.”

Similar to regular bail, anticipatory bail from any of these courts can be recalled.
A person who has been granted Pre-arrest bail can be ordered to be arrested and held
subsequently if the complainant or prosecution so desires.60

Section 439 describes the High Court or Court of Session’s extraordinary bail powers.
It can immediately re-arrest a Section 439(2) bailee. The court must grant bail or impose
whatever conditions it deems suitable if the accused’s crime fits under the categories in
Section 437(3), it are as state, “If a magistrate imposes restrictions on a person’s

60
PriyankaPurohit, “Explained: Anticipatory Bail and Judicial Interpretation on Section 438 of
Criminal Procedure Code, 1973”, on 1st Oct., 2021, available at:
http://www.bsklegal.org/blogs/explained-anticipatory-bail-and-judicial-interpretation-on-section-
438-of-criminal-procedure-code-1973/

52
 release on bail, those restrictions can be lifted or modified by the High Court or Court
of Session. The Public Prosecutor must be notified of the bail application and given
written reasons before releasing an accused who falls under the jurisdiction of the
Court of Session or faces a life imprisonment sentence.”61

2.6. Exceptional Scenario for providing Bail:

Bail is a legal process that allows “a person accused of a crime to be released

from custody” while awaiting trial. It is intended to confirm that the individual shows
up for court proceedings and does not pose a danger to the community. However, there
may be situations where providing bail becomes an exceptional scenario.

2.6.1 Removal of unnecessary conditions:

In granting the accused’s motion for “anticipatory bail under Section 438
Cr.P.C.”, the court ordered him to return the money he had received from the
complainant and revoke the registered sale deed he had made. This clause is repeated
for your convenience below:

“In order to ensure proper cooperation with the ongoing investigation, the
petitioner/accused must present all relevant registered documents to the investigating
authorities. Within two months of today, he must cancel the registered sale deeds
executed in favour of the vendees and return the consideration amount received
through these deeds. Failing to do so will result in the automatic cancellation of the
petitioner’s liberty and his immediate arrest.”62

However, the accused should not have been granted anticipatory bail by the
High Court due to Condition No. (iii), as the rights of the parties to registered papers
are exclusively within the jurisdiction of a Civil Court, according to the Supreme
Court’s ruling.63

Prudence while granting bail:

If an accused is granted bond while an examination is still in progress, it could

hinder law enforcement’s ability to question him or her, gather evidence, and uncover
61
Section 437(3)(b) of Cr.P.C., 1973.
62
Syed Afsar Pasha Quadriv. The State of Telangana, 2021 SCC OnLine SC 977.
63
Ibid.

53
any potential red herrings. If the accused believes he is immune from such questioning
due to a court order, he is less likely to cooperate. The issuance of anticipatory bail
would significantly hinder the police’s ability to investigate and prosecute economic
offences. We have determined that “anticipatory bail should not be granted” in this
matter due to the current stage of the probe and the papersallegedly acquired by the
respondent-Enforcement Directorate.64

Long relationship is irrelevant to Anticipatory Bail:

The decision to grant or revoke “anticipatory bail” should not be based on long-
standing ties. Cancellation of “anticipatory bail” should be determined entirely by the
unique details and situation of each case. A person’s right to a fair trial should take
precedence over the duration of their relationship. As a result, protecting the interests
of all parties involved requires a fair and impartial process to terminate anticipatory
bail.

The highest court has considered an appeal challenging a decision by a lower

court that refused to grant bail before arrest under a specific section for offences under
various sections of the IPC. It was an established fact in her case that the litigant and
the appellant were in a relationship for four years. The information provided, it is
evident that the complainant willingly moved in with the appellant and entered into a
dating relationship with him. Hence, if the relationship is not successful, it cannot be
cited as a basis for filing a FIR for “the offence under Section 376 (2)(n) of IPC.” The
Apex Court clarified that the observations in the current order only pertain to the pre-
arrest bail application. The investigation will proceed regardless of the order ofevents.65

Anticipatory bail in culpable homicide:

The petitioner applied for anticipatory bail at Police Station Joshimath, District
Chamoli, under Section 438 Cr.P.C., in anticipation of his imprisonment, for the
offences of breaking Sections 304, 201, and 120B of IPC. The right to liberty, as stated
in “Article 21 of the Indian Constitution”, is a fundamental one that should only be
violated in cases of extreme necessity. The court has heard arguments from both

64
P. Chidambaram v. E.D., AIR 2019 SC 4198
65
Ansaar Mohammad v. State of Rajasthan and Another, 2022 SCC OnLine SC 886.

54
sides and has reached the following decision: if Suraj Singh alias Suraj Thakur is to
be arrested, he will be granted bail in return for posting “a personal bond of Rs. 30,000
and two sureties of the same amount.” This decision is made without passing judgement
on the merits of the argument:

(i) The applicant agrees to cooperate with any law enforcement official who
requests to question him;

(ii) The applicant must not offer or make any promises to anyone who knows the
case details, either directly or indirectly.66

Anticipatory bail in Dowry deaths:

For the charges of breaking Sections 304, 201, and 120B of IPC, the applicant
has applied “for anticipatory bail under Section 438 Cr.P.C.” at Police Station
Joshimath, District Chamoli. “Article 21 of the Indian Constitution” guarantees
individuals the right to freedom, which should only be infringed upon in exceptional
circumstances. Without weighing in on “the merits of the case, the court has decided
that Suraj Singh alias Suraj Thakur should be granted bail if he is arrested, with the
conditions that he post a personal bond in the amount of Rs. 30,000 along with two
sureties in the same amount”:

i) The applicant must be available for questioning by “the Investigating Officer”

whenever necessary;

ii) The applicant shall not induce, threaten, or promise any person familiar with the
circumstances of this matter in any way, either directly or indirectly.67

Anticipatory bail in sexual assault:

Application for anticipatory bail has been made by Shahnoor alias ShanuArun,
the applicant-accused, under Section 438 Cr.P.C., in light of his impending arrest in
connection with First Information Report (FIR) No. 109 of 2022, which was filed with
Police Station Pantnagar, District Udham Singh Nagar, for the offence under Sections
376, 312, and 506 of IPC. Counsel for the petitioner argued further that the state has
not shown guilt beyond a reasonable doubt. In Article 21 that an individual’s

66
Suraj Singh v. State of Uttarakhand, 2022 SCC OnLineUtt 65.
67
Shiv Lal Arya v. State of Uttarakhand, 2022 SCC OnLineUtt. 842

55
 “right to personal liberty” must be respected at all times and should only be violated
in extreme circumstances. With this background and without passing judgement on the
case’s merits, “the court has decided that, in the event that Shahnoor alias ShanuArun,
the applicant, is to be arrested, he must post a personal bond of Rs. 30,000 and two
sureties of the same amount, all to the satisfaction of the InvestigatingOfficer/Arresting
Officer, in order to be released on bai”l:

(i) The applicant must be available for questioning at the request of the
investigating officer;

(ii) The applicant must not induce, threaten, or promise anyone who knows
anything about this matter in any way.68

Anticipatory bail inAbetment of suicide:

After more than three and a half years of benefiting from anticipatory bail that
had been granted by the HC, the accused decided to turn down that opportunity. Without
weighing in on “the merits of the case”, the Apex Court reversed the High Court’s
decision and released the accused on anticipatory bail.69

2.6.2 Pre-arrest bail:

Thus, Section 170 of Cr.P.C., it is not essential to make an arrest before filing
a charge sheet. Therefore, the argument that “anticipatory bail” cannot be granted
because the accused must be apprehended before a charge-sheet can be filed is
unfounded. For trial judges to insist for the arrest of the four accused individuals before
taking the charge-sheet on record is both unreasonable and contrary to thespirit of
Section 170 Cr.P.C. The court is required to consider the police charge sheet as evidence
and assess it legally regardless of whether the accused has been located or not. This
becomes extremely crucial when, as stated in Section 468 of Cr.P.C., the taking of
cognizance of an offence is time-sensitive. If the Investigating Officer (IO) does not
feel that “the accused would abscond or disobey summons, then the accused does not
need to be brought in custody at the time the charge-sheet is filed pursuant toSection
170 Cr.P.C.”.70

68
Shahnoorv. State of Uttarakhand and Others, 2022 SCC OnLineUtt 897
69
DheerajBhadviyav. State of Rajasthan, (2022) 6 SCC 63
70
Siddarthv. State of U.P., (2022) 1 SCC 676

56
Anticipatory bail is based on nature of allegations:

In many jurisdictions, an individual is able to submit an application for bail in

advance of their arrest or criminal charges. This provision is based on the nature of the
allegations against the person and aims to protect their rights and ensure their presence
during the investigation or trial. For a judge to issue anticipatory bail, they must have
reasonable suspicion that the defendant won’t abscond or tamper with evidence. As a
check and balance, it ensures that justice is served while also protecting the rights of
the accused.

In its decision to grant anticipatory bail to four individuals facing charges under
“Sections 120B, 167, 218, 330, 323, 195, 348, 365, 477A, and 506 of IPC,” the
High Court of Kerala made certain observations that failed to consider the details of the
accusations or their responsibilities while serving with the Kerala Police (IB). The Apex
Court revoked the accused’s anticipatory bail and sent the case back to the“High
Court” for a further hearing on the applicants’ requests for bail. The High Court’s
decisions and directives on the matter make it seem as though the FIR, which was filed
years after the occurrence in 1994, had some sway on the court. But the plaintiff was
given permission to submit the FIR by the highest court in a 2021 ruling and order, and
the High Court ignored this, and because the Apex Court had accepted the
recommendations of a committee chaired by the Hon. Justice D.K. Jain. Therefore, the
current FIR was filed in response to the Supreme Court’s remarks and directives, which
the High Court failed to recognise. In 1994, the accused weregranted anticipatory bail
by the High Court without taking into account the seriousness of the charges, their role
in the crime, or their employment status during that year. The Supreme Court’s ruling
states that “the High Court’s judgements and orders granting anticipatory bail to the
accused deserved to be quashed and set aside.” After reviewing the cases, the High
Court will be sent back to reconsider the applications and issue new orders based on the
Supreme Court’s observations.71

Power of grant of Bail:

According to “Section 438 of Cr.P.C.”, only sessions and the high court have
the authority to issue anticipatory bail. “Anticipatory bail is available in sessions or

71
CBI v. P.S. Jayaprakash, Cri. App.No. 2147-2149 of 2022 decided on 02.12.2022 of the Hon’ble
Supreme Court.

57
high court” if a individual anticipates being detained for a crime for which there is no
possibility of release on bond. And if it’s accepted, the individual would be released
under certain restrictions. Therefore, the Supreme Court72, after considering the many
scenarios in which “the discretionary authority should be applied by the appropriate
court”, created the following rules:

(1) The idea of “anticipatory bail” is to keep an accused person from suffering any
further embarrassment at the hands of law enforcement. However, public trust
in the judicial system would be irreparably damaged if courts meddled
carelessly with criminal investigations. To maintain public trust in the judicial
system while still protecting the dignity of the accused, the court must find a
middle ground.

(2) The use of “Anticipatory Bail” is not limited to premeditated criminal acts.
Contrarily, under “Section 438”, the applicant’s social or economic standing is
irrelevant.

(3) The court should exercise caution when considering granting “anticipatory bail”
in circumstances involving severe allegations of wrongdoing.

(4) In this respect, it is quite pertinent to recall that “the Constitution Bench” of the
Hon’ble Apex Court concluded that “there is no offence, per se, which stands
excluded from the purview of section 438, except the offences mentioned in
section 438(4).” That is to say, “anticipatory bail can be granted for any crime
after considering all the facts and circumstances. At the same time, any signals
in a special legislation or statute that rule out relief under section 438(1) would
have to be taken into account.” If the court has discretion, it should do so
“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); the
likelihood of his cooperation (or non-cooperation) with the investigating agency
orpolice, etc.” The court has noted that it must take into account the offender’s
position, the circumstances surrounding him, and the risk that he will subvert
justice (or a fair investigation) before imposing any exceptional conditions on
him.73

72
Sushila Aggarwal v. State (NCT of Delhi), AIR 2020 SC 831
73
Ibid.
58
 Presence of accused during hearing of bail:

Under “the Central Act”, the applicant for “anticipatory bail” must appear in
court only if “the Public Prosecutor has filed an application”that effect pursuant to sub-
section (1B) and the court determines that “the applicant’s presence is necessary in the
interest of justice. In this regard, the U.P. Amendment does not make any such provision
in express terms”, but rather provides that “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” (sub-section 4).74

Although the applicant may be arrested without a warrant by the station

commander, the Central Act states that he might be freed on bond if he is equipped to
do so under subsection (3) of Section 438 Cr.P.C. A warrant must be issued first beside
the accused if the Magistrate hearing the case determines so, according to the Central
Act, A bailable warrant will be issued by him in accordance with the Court’s direction
under subsection (1). The U.P. Amendment does not include such a clause.”75

Procedure of Anticipatory Bail:

“Sub-section (5) of Section 438 Cr.P.C., as amended by the Uttar Pradesh

Criminal Law (Amendment) Act, 2018”, effective 21.04.2018, mandates that a court
must rule on a request for ‘anticipatory bail’ filed under sub-section (1) of that section
within 30 days. This is not addressed in the Central Act.76

The above Act adding sub-section (4), which states that Section 438 Cr.P.C.
does not apply to cases where anindividual is arrested on suspicion of violating“Section
376(3), Section 376AB, Section 376DA, or Section 376DB of IPC”. Sub- section (6)
of the U.P. Amendment, on the other hand, excludes from its scopeoffences
committed as a result of:

(i) “The Unlawful Activities (Prevention) Act, 1967”;

(ii) “The Narcotic Drugs and Psychotropic Substances Act, 1985”;

74
Ibid.
75
Ibid.
76
Prateek Jain v. State of U.P. And 2 Others, Cr.P.C. No. 4002 of 2021, decided on 10.05.2021.

59
(iii) “The Official Secret Act, 1923”;

(iv) “The Uttar Pradesh Gangsters and Anti-Social Activities(Prevention) Act,

1986”;

(v) “The offences, in which death sentence can be awarded.”77

Finally, the U.P. Amendment adds a clause to sub-section (7) that is absent from
the Central Act. In Uttar Pradesh, this provision reads as, “No individual shall be
allowed to reapply to the Court of Session if they have already applied to the High
Court under this provision.”78

Since the Court of Sessions possesses concurrent jurisdiction, “the Hon’ble

Allahabad High Court has ruled that a bail application filed under Section 438 of
Cr.P.C.” cannot be maintained before the HC unless all other available remedies have
been exhausted. However, the court may also provide the remedy under the
aforementioned article for exceptional or unrelated circumstances.79

Allahabad High Court upheld in a case of Vinod Kumar v. the State of U.P.80,
“to apply for bail under section 438, directly in High court, the applicant has to prove
the exceptional, unusual and urgent circumstance to approach the High Court, before
exhausting the remedy available at Court of Session.”

The above legal presumption was established by “Allahabad High Court” in a

later judgement that went into further detail about “the matter of simultaneous authority
of the High Court and the Sessions Court”:

(1) To get “anticipatory bail before the High Court”, a party need not first apply to
the Sessions Court, as this is not essential by the plain language of Section 438.

(2) While the High Court and the District Court may both have the ability to hear
a case, the existence of exceptional circumstances warranting the High Court’s
involvement first is required.

77
S.S. Upadhyay, Anticipatory Bail (Section 438 CrPC), online available at:
https://lawhelpline.in/PDFs/CRIMINAL_LAWS/Anticipatory%20Bail.pdf
78
Hemant Kumar @ Hemant Kumar v. State of U.P. And Another, 2021 Latest Caselaw 11510 ALL
79
Harendra Singh v. State of U.P., 2019 SCC OnLine All 4571.
80
2019 (12) ADJ 495

60
(3) The existence of such elements should be determined by the court on a case-
by-case basis.

(4) It is generally accepted that “exceptional” or “extraordinary” refers to

something that is not typical, common, ordinary, unique, or common at all.

(5) Thus, an applicant has another opportunity to rectify the lower court’s error by
challenging “the Sessions Court’s order in revision before the High Court”.81

However, in Ankit Bharti v. State of U.P. 82 , case the court held that
“anticipatory Bail Application under Section 438 Cr.P.C.”, issued a binding decision
on the law governing this issue, and the decision was made by a five judge bench. This
judgement affirms the findings in the f Kumar case (above), which was issued by the
Hon’ble High Court. The Hon’ble Bench has further emphasised the importance of
supporting and establishing the extraordinary circumstances using the available
evidence. Arrest warrants need to be supported by substantial evidence. Bail, whether
granted or denied, is just a temporary measure, as declared by the Supreme Court of
India. Under the U.P. Amendment’s Explanation added to section 438 (2), it is stated
explicitly that “this Code, no interim order will be considered final upon a request for
direction under subsection (1).”83

Jurisdiction for Anticipatory Bail:

When a crime is committed in one jurisdiction but the suspect is a resident of

another, there is some debate as to which state’s court the suspect should petition for
“anticipatory bail”:

(i) The Karnataka, Bombay, and Delhi High Courts have all concluded that “the
applicant is not precluded from seeking relief from the court within whose
jurisdiction he anticipates arrest”.84

(ii) It has been decided by the High Courts of the States of “Punjab, Jammu and
Kashmir, Kerala, Madhya Pradesh, and Patna” that –a) “bail is incidental to the
trial of an offence”, b) “A general rule established in section 177 Cr.P.C.
81
Ibid.
82
2020 (3) ADJ 165.
83
UsmanbhaiDawoodbhaiMemonv. State of Gujarat, (1988) 2 SCC 271
84
Naidu v. State of Karnataka, 1984 Cr.Lj 757(Kant)

61
 should apply in the absence of a specific provision under section 438”. The High
Court having jurisdiction over the alleged offence and the trial of thecase
should be the one to grant anticipatory bail, rather than the High Court of the
applicant’s home state where they fear arrest.85

(iii) According to a Full Bench ruling by the HC, Calcutta in SaileshJaiswalv. State
86 , any court outside “the jurisdiction in which the offences were committed
may exercise its jurisdiction for anticipatory bail only to the extent of
considering bail for a transitional period, but may not go beyond this”. This is
the perimeter of the Court’s geographical jurisdiction over the accused
crime.

(iv) In the case ofState v. Krishna Kumar87, the petitioner was a resident of
Maharashtra when the judgement was issued, which is why the Apex Court
overruled the lower court’s decision to award anticipatory relief for an offence
committed in Assam. The court noted that if the alleged crime had taken place
in Gauhati, the High Court of Gauhati would have the authority to hear thecase
and decide on anticipatory bail for anyone involved. Although the Bombay High
Court was not specifically denied jurisdiction to entertain anticipatory bail
petitions, the Hon’ble Supreme Court decided to transfer them to the Division
Bench of the Gauhati High Court in each of the aforementioned cases. As an
alternative, the court delegated jurisdiction to the High Court in the jurisdiction
of the accused crime.88

(v) In Nasir Ahmad Wani v. Police Station 89, the bench presided over by Sanjay
Dhar, J., considered whether this High Court, pursuant to “Section 438 of
Cr.P.C.”, has the authority “to grant bail in a case that has been registered
outside” of its area of local jurisdiction. It was decided that, despite the
accused/petitioner’s possible residence within this Court’s jurisdiction, this
Court lacks the jurisdiction to hear and decide the current bail application, which
relates to a “FIR” that was filed outside of its local jurisdiction.Thus, it

85
Ravinder v. State of Punjab, 1984 Cr.Lj 714 (P & H)
86
(1998) 2 CHN 81
87
AIR 1998 SC 144
88
Ibid.
89
Nasir Ahmad Wani v. Police Station, 2022 SCC OnLine J&K 452.

62
can be concluded that the petitioners in the current instance are not asking for
transit bail but rather bail before they are arrested permanently. But despite the
petitioners’ residence within this Court’s jurisdiction, he came to the end that
this High Court lacks power “to grant bail in anticipation” with the precedent
described above.

63
 CHAPTER–III

STATUTORY PROVISIONS, RECENT AMENDMENTS AND IT’S

IMPACT ON THE CONCEPT

This is a hard fact that legislation in the past time as well as, in the present
time has been the integral part of every country’s administrative system and rather is
the spinal cord, and foundation of it. The obvious reason is the customs, practice and
precedents cannot cover the whole areas of administrative system. In the modern time,
it is being used for change, improvement and reformation in the neglected areas of
social, religious and administrative activities.

In India, the criminal jurisprudence or judicial administration is guided only by

the statutory provisions laid down by the legislative authorities. After the independence,
drastic changes have been made by the legislative authorities by way of various
legislations for refurnishing, rebuilding and reforming the existing legislative
enactments and for this purpose various examples may be cited. Further, when the crime
is committed, then “the Indian Penal Code, 1860, Indian Evidence Act, 1872, and the
Code of Criminal Procedure, 1973”, mainly come in the picture. “The law enforcement
agencies” will arrest, detain and search the so called accused (whether innocent or not)
to bring him/her behind bar. Then the only ray of hope of such person is getting bail of
any kind available in the Cr.P.C., 1973. Out of such various bails, the anticipatory bail
is the protection shield of the arrested or detained,to save him from inhuman torture,
harassment etc. from the enforcement agencies. The recent Amendment even in
Section 438 of Cr.P.C. have shown the various helping alternatives to the
accused/arrested/detainee person. Hence, an attempt has been made in this chapter to
discuss and analyse the different dimensions of legislative enactments, amendments
and effects on the concept of bail andanticipatory bail specifically.

In this regard, it can be said further that the concept of statutory provisions and
recent amendments have a significant impact on various aspects of our society. With
laws regularly evolving and being updated, it is crucial for individuals to stay

64
informed about these changes. Whether it pertains to employment regulations,
environmental policies, or criminal justice, understanding the impact of statutory
provisions is essential for compliance and informed decision-making. By examining
recent amendments and studying the consequences of these changes, we can gain
valuable insights into the evolving legal landscape and its effects on our daily lives.

The defendant is released from custody in exchange for posting bail, which is
“a personal bond or assurance” that he/she will appear in court and abide by any
restrictions forced by the judge. A suspect need not remain in detention indefinitely just
because of criminal charges.

In a criminal justice system that recognises the importance of a person’s

innocence until proven guilty, bail plays a crucial role. The need to ensure the right to
freedom gave rise to the practise of giving bail. Individual liberty shall not be abridged
except an appropriate to lawful and proper procedures.90

Protecting the accused’s freedom without giving them an undue advantage is

the goal of the bail system. On the other hand, others have pointed out that the bail
system is quite unclear and unstable. There are a number of factors that go into deciding
whether to issue bail, as well as the conditions on the bail bond. In many decisions, the
Supreme Court has emphasised the need to evaluate each case individually before
granting bail.The decision to release an arrested person on bond must take into account
both the person’s and society’s requirements.

In recent times, bail-in India has sparked heated debate. There are a lot of
articles about the Indian criminal justice system. The accused’s release on bail is really
important since governmental agencies impose pre-trial incarceration with terrible
consequences.If released on bond, the defendant would return to the mental and
physical confinement of jail. But until proven guilty beyond a reasonable doubt, the
court will presume his innocence. Because he must remain in jail throughout the
procedure, the accused loses his job and is unable to contribute as much to his
defence. More importantly, his innocent loved ones sometimes bear the brunt of his
incarceration.

90
The Constitution of India, Article 21.

65
 The persistence of bail law is to guarantee that society is protected from the
accused’s possible wrongdoing while simultaneously respecting the accused’s right to
be assumed innocent until proven guilty. When lower courts are deciding whether to
release an accused person pending trial, bail should be the rule and jail the exception.
However, even this rule has an exception that states that bail provisions should be
interpreted according to what is best for everyone involved, including the prosecution
and society as a whole. The public’s safety must take precedence over individual
liberties wherever possible. According to Article 21 of the US Constitution, the right to
liberty cannot be infringed upon unless reasonable, fair, and just procedures are
followed.

Provisions under Cr.P.C.:

The bail rules of India’s Cr.P.C. are essential to the country’s justice system.
These safeguards are put in place to guarantee an impartial trial for the accused. The
gravity of the offence, the accused’s possible flight risk, and the accused’s societal
threat are some of the factors that “courts take into account when determining whether
to grant bail.”

Chapter III of the Cr.P.C. of India has bail provisions at Sections 436 to 450.
Offences can be broken down into two types: those that can and cannot be released on
bail. In Section 2(a), “bailable offence” refers to a crime that is contained in the First
Schedule or is otherwise bailable under current law, whereas “non-bailableoffence”
refers to any crime that is not incorporated in the definition of “bailable offence.”91

Some would argue that they are eligible for bail are presumed to be less serious
than those that are not, so defendants in such cases have a greater chance of being
granted bail. In many jurisdictions, the maximum sentence for some types of offences
is less than three years. Bailability increases one’s odds of release from jail significantly
for certain crimes. Offences that can be unrestricted on bail are called “Bailable
Offences.”After these conditions are met, “bail can be granted as a matter of law for
such an offence under Section 436 of the Cr.P.C.” In the early aftermath of an

91
The Code of Criminal Procedure, 1973, Section 2(a)

66
arrest or imprisonment for specific offences, the police have the power to post bail for
the accused.

Therefore, if the crime is one for which bail can be established, the accused must
be released at any point during their arrest or incarceration by the court and the police.
A person’s ability to post bond is not automatically eliminated just because they are
assigned the “non-bailable” charge. This renders the accused’s demand for it during
their arrest or custody legally moot.

Nevertheless, individuals are allowed to communicate with the court during

the pending phase of their case. The gravity of these offences exceeds that of bailable
ones. A mandatory minimum sentence of three years is imposed for crimes for which
bail cannot be obtained. When the defendant does not immediately qualify for bail,
the court can nonetheless decide to release them on bond. In the same vein, prudent
judgement, rather than caprice, is required.

The main mandatory bail provision are under Section 436, 437, 438 and 439
of Cr.P.C. These sections have been analysed and discussed by the various courts in
numerous decisions such as:

(i) Section 436(A) of CrPC:

In 2005, an amendment included this section. The maximum time a defendant

can be held in jail before trial is addressed. According to this provision, “a defendant
must be released on personal bond with or without assurance if he has been in custody
for more than half of the maximum term of imprisonment stated for the offence for
which he is being tried. This confinement must occur prior to or during the course of
the case’s investigation, inquiry, or trial, and not during the actual execution of
sentence.”

After hearing from “the Public Prosecutor,” the Court has the discretion to
inflict a sentence of imprisonment for more than half of the aforementioned period, or
to grant release on bail in place of the personal bond. Even if release is not permitted
during the investigation, inquiry, or trial, a person cannot be imprisoned for longer than
the maximum sentence of imprisonment provided for the offence. Those who have been
accused of crimes for which the death penalty is possible are excluded.

67
 In Mantoo Majumdar v. State of Bihar92, the SC ruled that those awaiting
trial had a right to liberty and ordered the petitioners’ release on their own bonds without
sureties after they had been in prison for six years.

(ii) Section 437 (Bail in non bailable offence):

“When a person is arrested, detained, or brought before a court (other than the
High court or court of session), he may be released on bail unless he is charged or
suspected of committing a crime that is not bailable.”

“If there are credible allegations that he committed a crime carrying a death or
life sentence, he must remain in prison.”

“If he has previously been convicted of an offence punishable by death or life

imprisonment for 7 years or more, or if he has previously been convicted on two or
more instances of a non bailable and cognizable offence, then he will not be eligible for
bail if he is convicted of such an offence that is cognizable.” A person who, however,
is:

➢ Under age of 16 years

➢ A woman
➢ A sick

“Even if the accused has a prior conviction or is facing the death penalty for the
crime they are accused of, they may still be granted bail if they are in poor health”.

It was announced in Kalyan Chandra Sarkar v. Rajesh Yadav93 paragraph

11, that:

The court should use its discretion and deliberate carefully before determining
whether to release an individual on bond. The accused may be required to post bond
with sureties by either the trial court or the appeal court according to Section 437A of
Cr.P.C. This is to guarantee that the accused will come before the higher court and
follow the court’s decision.

92
(1980) 2 SCC 406.
93
2005(3) SCC 284.

68
(iii) Section 438 (Anticipatory Bail):

Anticipatory bail is awarded prior to an arrest, in contrast to the usual practice

of granting bail after an arrest. “The court has the authority to release an accused person
ahead of their scheduled arrest under Section 438 of the Criminal Procedure Code if it
finds that the person is unfairly implicated in the case and that their arrest would
significantly diminish their honour or dignity.”

Thus, there is no law on the limit of “anticipatory bail” however the customary
limit is all over the trial or processes. After nearly 33 years, anticipatory bail has
returned to Uttar Pradesh. During the 1976 crisis, the provision was abolished.
“Anticipatory bail” was ruled illegal under any dowry-related death conditions in
Samunder Singh v. State of Rajasthan.94

(iv) Section 439 (Special Power Regarding Bail):

If someone is accused of a crime and is currently in jail, “the High Court or

court of session” can order their release on bail. Whenever the act in question falls
within the scope of 437(3). It has the authority to order the removal or alteration of
any bail conditions forced by a magistrate.

The power to re-arrest someone by court who has been unrestricted on bail must
be handled cautiously in State v. Sanjay Gandhi95, widely known as the
“KissaKursiKa” case. However, such authority can be used in certain circumstances.

In Gurucharan Singh v. State (Delhi Administration) 96 , it was held

thatdeciding whether to issue bail, factors such as the seriousness of the crime, the
accused’s propensity to evade justice, and if he tampers with prosecution evidence take
precedence over other considerations.

In Dr. Vinod Bhandari v. State of M.P.97, the length of time the trial has lasted
to date is a significant aspect that the court should consider when assessingbail
applications. It is not, however, the deciding element. Additional considerations

94
AIR 1987 SC 737.
95
1978 SCR (3) 950.
96
AIR 1978 SC 179.
97
2016 (15) SCC 389.

69
include the gravity of crime and whatever potential the accused may have to
influence the trial.

In circumstances when an investigation cannot be completed within twenty-

four hours, judicial judges have the authority to authorise “custody of an accused person
under Section 167(2) of the Cr.P.C., 1973.” It specifies how long a custodial sentence
can go on for. The accused must be released on bond irrespective of the allegations
against him if the investigation cannot be completed within the statutory time limit.

Magistrates have the authority to hold “an accused person in jail and release him
on bail once the required time has passed”, as described “in sub-section (2) of section
167.” The provision clearly gives the magistrate the authority “to grant bail to the
accused.” The Supreme Court’s ruling effectively ends any doubt about the matter. 98
Some in the legal community mistakenly believe that only a “SessionsCourt” can grant
bail under section 167(2) in cases of crimes that must be tried before a sessions court.
When a magistrate exercises his or her power under “Section 167(2) of the Code”, the
limitations placed on the magistrate’s discretion by “Section 437 of the Code” with the
issue of normal bail do not apply.

In NatbarParinda case99, the Apex Court distinguished that “the accused has a
right to be released on bail under this provision even in serious and ghastly types of
crimes.”

The sentence’s duration (90 or 60 days) begins after the first-instance magistrate
remands the prisoner to imprisonment. “The date of remand to custody does not
necessarily coincide with the day of arrest due to the legal need that an arrested
individual be presented before a magistrate within twenty-four hours. Amagistrate has
the authority to sanction a maximum of 90/60 days of detention, which can include both
police and judicial custody.”

The Apex Court ruled that Union of India v. NiralaYadav100, “Magistrate

should decide the application for statutory bail on the same day it is filed.”

98
State of U.P. v. Laxmi Brahman, AIR 1983 SC 439
99
NatabarParindav. State of Orissa, AIR 1975 SC 1465
100
AIR 2014 SC 3036.

70
 In a case of Thangavel Ravi v. State of A.P.101, the petitioner was accused of
“a Section 307 IPC” offence without physical damage. The HC ruled that “the case
should be classified as falling under the first part of Section 307 IPC, with a maximum
sentence of 60 days in jail under proviso (a)(ii) of Section 167(2) ofCr.P.C.”
Therefore, petitioner is eligible for release on bond if “the charge sheet is not filed within
60 days after the date of arrest”.

Apex Court ruled in “Rakesh Kumar Paul v. State of Assam102, an accused

is entitled to statutory bail (default bail) under Section 167(2)(a) of Code of Criminal
procedure if the police failed to file the charge-sheet within 60 days of his arrest for the
offence punishable with ‘imprisonment up to 10 years’.”

This case’s major issue was “whether in a case regarding offence for which the
punishment imposable may extend upto ten years, the accused is entitled to bail under
Section 167(2) of the Code of Criminal Procedure 1973 due to default on the part of
investigating agency in not filing the charge sheet within sixty days?”

The highest court resolved of this matter, “Offences punishable with

imprisonment of not less than ten years have been kept in one compartment equating
them with offences punishable with death or imprisonment for life. This category of
offences undoubtedly calls for deeper investigation since they provide for a lesser
minimum sentence, even though the maximum punishment could be more than ten years
imprisonment.”

Recently, in Jasbir Singh v. National Investigating Agency103 case, the SC

state that “an accused is not entitled to seek default bail on the grounds that the
chargesheet, though filed within the requisite period, remains ‘incomplete’ for lack of
sanction under Section 167(2) of the Code of Criminal Procedure.”

3.1 General Principle regarding Bail Law:

Bail, within the context of “the criminal justice system”, is the practice of
temporarily releasing a defendant before trial in exchange for a set sum of money or
property. In order to safeguard the community from any danger that the offender may

101
2017(1) ALD (Cri.) 449,
102
AIR 2017 SC 3948.
103
2023 LiveLaw (SC) 377.

71
pose and to guarantee that they present in court for their trial. However, a fundamental
principle of bail law is the assumption of innocence. The premise that everyone is
presumed innocent until proven guilty means that they should not be held indefinitely
before a trial unless there is a valid reason to do so.

1) “It is the responsibility of the prosecuting magistrate or police officer to

guarantee the accused’s right to bail when the charges are bailable.

2) The power to grant bail lies with the court, not the police, even when the charges
themselves are not bailable.

3) As a general rule, a magistrate cannot grant bail to a defendant when the

maximum penalty for the charge against them is death or life in prison.Women,
people with disabilities, and children under the age of 16 are the only exceptions
to this provision.”

4) The appeal court has enormous power to exercise judicial discretion in bail
situations.

5) Chapter XXXIII, sections 436–450 of the code govern bail, and the charges
listed there can be further categorised as either cognizable or non- cognizable.103

Complications in Indian Bail System:

Under Indian judicial system, various hurdles, complications are prevailingout

of which main difficulties are as follows:

While guaranteeing the rights and freedoms of those “who have been accused
of a crime, the bail system in India” has its share of difficulties. Some frequent problems
with India’s bail system are as follows:

1. Lengthy and Delayed Process: In India, getting bail can be a time-consuming

and laborious process. Bail applications are typically significantly delayed in
the Indian judicial system because to the enormous workload and backlog of
cases, resulting in protracted pretrial custody for individuals who may be
innocent or whose crimes have not yet been established.

103
R.K. Gupta and Dr. M.K. Chaubey, Law on Anticipatory Bail, LexMan, 1stEdn., 2022.

72
2. Overcrowding of Prisons: Overcrowding is a major problem in the Indian jail
system, which is exacerbated by the enormous number of convicts who are
currently “undertrial.” Many people, even those accused of minor crimes, are
unable to post bail and must remain in jail until their cases are resolved. Because
of this, prison services, infrastructure, and inmates’ safety are all compromised.

3. Financial Barriers: A monetary deposit or surety is frequently required as part

of bail conditions. This is problematic for the poor since they often lack the
resources necessary to post bail. So, they might stay in jail for no other reason
than they can’t afford to get out.

4. Inconsistent Application: Bail rules in India might be interpreted and applied

differently by different courts and jurisdictions. A judge’s discretion can make
a big difference in the result of a case, and this leads to variance in bail rulings.
Because of this inconsistency, the bail system can no longer be relied upon to
be fair or predictable.

5. Influence of Political and Economic Factors: It is not always the case that bail
is granted exclusively on the origin of legal principles but that political or
economic factors also play a role. This raises worries about the potential effect
of power and privilege in the bail procedure and weakens its integrity and
impartiality.

6. Lack of Legal Aid: Those already at a disadvantage may be even more likely to
lack access to legal counsel and assistance. This can make it harder for them to
grasp their rights, navigate the bail system, and make an effective bail
application.

Reforms to speed up the bail procedure, decrease prison congestion, guarantee

everyone has equal access to justice, and increase transparency and consistency in bail
judgments are all necessary to tackle these issues. Some of the problems with the Indian
bail system could be mitigated through the introduction of alternative measures such
pretrial services, legal assistance programs, and bail reform initiatives.

73
 154
In the famous case of GudikantNarasimhulu v. Public Prosecutor ,
hon’ble Justice Krishna Iyer remarked that, Bail is a gray area in “the criminal justice
system” that often comes down to a judge’s gut feeling, or judicial discretion. It is
crucial that discretion be utilized cautiously and carefully, considering the interests of
both justice and individual freedom. It must follow established norms and laws rather
than being arbitrary or open to interpretation. Recently, there has been a disturbing
pattern of arbitrariness in the application of discretion, which has seriously hampered
the pursuit of justice. When a high-profile defendant is involved, bail is often given
without the gravity of the situation.

When the victims of these crimes are left reeling from injustice, these
perpetrators go free. In most countries, including India, it is now the standard rather
than the exception for the rich and prominent to get out of jail quickly and easily on
bail, while the masses, the common people, and the destitute are left to rot in prison.

The court-imposed quantity of bail bonds is another key issue with the bail
system. When deciding on a bail amount, courts must take into account a defendant’s
financial circumstances.

Thus, the Law Commission Report’s statistical analysis, 70.6% of all convicts
awaiting trial are either completely or partially illiterate, which is indicative of their low
socio-economic status. The constant violation of their right to life, liberty, and the
pursuit of happiness has locked them in a cycle of poverty and ignorance. It appears
that a defendant’s financial situation is now the deciding factor in whether or not they
are granted pretrial release.

3.2 Key Elements for granting Bail:

Indian courts consider a variety of fundamental elements when determining

the appropriateness of anticipatory bail. Important components of a bail hearinginclude
these:

Apprehension of Arrest: A person can request anticipatory bail if they believe

they will be arrested for a crime that does not qualify for bail. The suspect must
present equitablefeeling that an arrest has been or is about to be made.

154
AIR 1978 SC 430.

74
 Presumption of Innocence: When determining “whether or not to grant
anticipatory bail”, the presumption of innocence applies. In order to protection
the accused person’s rights and freedom, the court typically issues anticipatory
bail before a trial has even begun.

Reasonable and Prima Facie Case: When deciding whether or not “to grant
anticipatory bail”, the court looks at the applicant’s circumstances. A prima
facie case is what the court is looking for when deciding whether or not to hear
an allegation of false accusation or harassment.

Cooperation with Investigation: The applicant’s willingness to participate with

the examination is weighed by the court. The petitioner must provide evidence
that they intend to fully cooperate with the investigative agency and notobstruct
justice.

No Abuse of Protection: The court monitors the use of anticipatory bail to make
sure it isn’t being abused to avoid justice or stymie an inquiry. The petitioner
must prove that they are legitimately afraid of being arrested and are not trying
to avoid serving their time in jail.

Conditions and Safeguards: When granting anticipatory bail, the court has the
discretion to impose various restrictions and protections. This is to defend the
interests of justice and public safety, as well as “to make sure the accused is
present during the investigation and trial.”

Discretion of the Court: When determining whether to grant anticipatory bail,

the judge has considerable discretion. The court takes into account a number of
deliberations, including the seriousness of the crime, the applicant’s criminal
history, the prosecution’s ability to prove guilt, and the possibility that the
applicant may try to flee the country or tamper with evidence.

The Indian criminal court system has used bail for decades. After an arrest or
reasonable fear of arrest, a defendant may petition the court for bail.

In accordance with one of its guiding principles, India’s criminal justice

system delays the initiation of punishment until after an offender has been found

75
guilty. That’s why it takes legal process to restrict someone’s freedom. When
someone’s freedom is taken away from them without a trial, the Apex Court says that
it is a form of punishment. This was stated in Maneka Gandhi v. Union of India
case.104

Another axiomatic basis is the presumption of innocence, which is only reversed

in very rare cases. An accused person is deemed innocent until proven guilty, which is
a fundamental concept of both bail and criminal law. Evidently, the first intent of bail
was to safeguard the individual’s right to liberty as enshrined in Article 21 of the
Constitution. The treatment of a foreign national in the bail process must be same to
that of a citizen in accordance with the concept of equality.

There is a distinct philosophy to the law of bail, and it plays a significant role in
the administration of justice, as demonstrated by decisions like “Vaman Narain Ghiya
v. State of Rajasthan”105, in which the court made the following statement regarding
the reasoning behind giving bail.

Bail is the norm, not the exception, in “the criminal justice system”, which is
another important but sometimes disregarded aspect of it. Modern practices for
handling several bail requests have evolved throughout the years. A second bail
application cannot make use of the identical facts and arguments.

Section 362 Cr.P.C.states: “Save as otherwise provided by this Code or byany

other law for the time being in force, no Court, when it has signed its judgment or final
order disposing of a case, shall alter or review the same except to correct a clerical or
arithmetical error.”106

Bail is an example of an interlocutory order, therefore this bar only applies to

the judgment and final order. As a result, “bail” is not affected by Section 362.

According to ruling by the Apex Court in Samunder Singh v. the State of

Rajasthan107, the HC should not release an accused individual on “Anticipatory bail”
if they are suspected of involvement in a “dowry death” case.

104
AIR 1978 SC 597.
105
2008 (16) SCALE 324.
106
Section 362 of the Code of Criminal Procedure, 1973.
107
(1987) 1 SCC 466.

76
 In the case of Kalyan Chandra Sarkar108, Apex Courthas established that a
“new application for bail” may be filed if there has been a material change in the case’s
circumstances. Therefore, there is no reason not to consider a second application.

If the bail application was previously decided based on other information, such
as the “First Information Report”, the court will not prevent a “new application for bail”
from being filed upon the filing of the charge-sheet. In light of this new information,
the bail application presented after the charging document was filed should be treated
as a change of substantial significance.

The court ruled in LT. Col. Prasad ShrikantPurohit v. State of

Maharashtra109, that” an accused person can apply for bail many times”, but each time
the court hearing the case must take into account the basis for the previous application’s
denial. And if bail is granted, the court should write down the specific arguments that
led to a different conclusion from the one reached in the initial bail application.

Section 438 Cr.P.C. as adopted in U.P.:

Both the original provision in “sub-section (1) of section 438” of Cr.P.C. and
the amended provision applicable in Uttar Pradesh are identical. Section 3 of the U.P.
Amendment incorporates, word for word, the provision of the Central Act’s sub- section
(1A). Both the Central Act and the U.P. Amendment are consistent with one another in
their provision of sub-section (2), which details the restrictions that “may be placed at
the time of the grant of anticipatory bail.” However, the U.P. Amendmentadds that “the
High Court or, as the judgement may be, the Court of Session, when making an interim
order to grant anticipatory bail, shall indicate the date, on which theapplication for grant
of anticipatory bail shall be finally heard. This provision is found in sub-section
(2).”Further, 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.”

108
Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004 (7) SCC 528.
109
(2018) 11 SCC 458.

77
Section 438 Cr.P.C. as amended in Uttarakhand

A First Information Report (FIR) Number 79 of 2021 was filed with Police
Station Pulbhatta, District Udham Singh Nagar, charging the applicant with violating
Sections 188, 269, 270, and 420 of IPC, Section 3 of the Epidemic Diseases Act of
1897, and Section 51 (b) of the Disaster Management Act of 2005. The applicant has
applied for anticipatory bail with the learned Sessions Judge of Udham Singh Nagar.
The learned Sessions Judge ruled against the request for bail in advance on September
2, 2021. Section 438 of Cr.P.C. has been given a legislative framework by Act No.
22/2020 of the State of Uttarakhand. This is what Cr.P.C., 1973, Section 438 says:

“Article 21 of the Indian Constitution protects the right to personal liberty,

which is a fundamental freedom that should only be limited in exceptional
circumstances.”

Having carefully reviewed the arguments of counsel for both parties and the
significant facts and law, but refraining from reaching any conclusions “on the merits
of the matter”, I respectfully submit the following. If his detention is warranted, the
applicant-accused AmanGoyal is hereby granted “bail in the amount of Rs.30,000” with
two independent sureties in the same amount who may each satisfy the Investigating
Officer/Arresting Officer.

The applicant must be available for questioning by police at any moment they
request it;

The applicant is prohibited from making any kind of direct or indirect offer,
threat, or enticement to anyone who is knowledgeable about the matter. If the Applicant
fails to comply with any of the restrictions placed on his temporary anticipatory bail,
the Investigating Officer has the authority to request that the court rescind it.

In Sushila Aggarwal v. State, (NCT of Delhi), (Five-Judge Bench), the SC

provided “guidelines for granting anticipatory bail under Section 438 of Cr.P.C.” For
courts to follow when “deciding whether to grant or deny anticipatory bail under

78
Section 438 Cr.P.C.”, the Constitution Bench of the Apex Court has agreed the
following guidelines. In light of what has been said in the two decisions and the
reference answers, the Court wishes to make the following points crystal clear to other
courts that may hear applications under “Section 438 of Cr.P.C.”

According to the decision in “Gurbaksh Singh Sibbia v. State of Punjab”110,

a person seeking a court injunction due to fear of arrest must present particular,
supporting evidence.The applicant’s application for anticipatory bail should include
the minimum necessary facts regarding the offense, the reasons the applicant
reasonably anticipates arrest, and the applicant’s version of events. Theseare essential
for the court that should review his application to assess the nature of the danger, the
extent to which it must be mitigated, and the nature of any conditions that should be
imposed. Assuming the evidence is undeniable and an arrest warrant maybe justified,
it is not necessary to wait until a FIR has been filed before moving an application.

Section 438 applications for restricted temporary anticipatory bail can be

decided by the court after “notice to the Public Prosecutor” and evidence request; the
severity of the threat (of arrest) determines the level of scrutiny.

Nothing in “Section 438 of Cr.P.C. requires or mandates that courts impose

limitations restricting relief in terms of time, or upon the filing of a FIR or the recording
of a statement of any witness, by the police, during the course of an investigation or
inquiry”, etc. “The nature of the crime”, the applicant’s role, the prospect of him
influencing the investigation’s course or tampering with evidence (including
intimidating witnesses), the likelihood of him fleeing justice (such as leaving the
country), etc. all factor into the spurt’s decision on “whether to grant anticipatory bail”
with the 438(2) Cr.P.C., the courts could and should implement the terms of “Section
437(3) Cr.P.C.”The need to implement more stringent requirements would necessity to
be assessed on an individual basis, with substantial weight given to evidence provided
by State or investigating agency in this regard. But such particular or other stringent
requirements shouldn’t be applied on a regular basis; they should beimposed only when
absolutely required. Similarly, when anticipatory bail is granted, the application of tight
bail requirements is case-specific.

110
AIR 1980 SC 1632.

80
 Before deciding to grant anticipatory bail, a judge should consider the specifics
of each case, together with the seriousness and type of the accused offences. The court
has wide latitude in deciding both whether to grant and, if so, what kind of extraordinary
restrictions should be attached.

The defendant’s behaviour following the filing of the charge sheet may warrant
an extension of anticipatory bail until the conclusion of the trial. The offendercould
commit more offences while simultaneously seeking indefinite bail relief thanks to a
blanket anticipatory bail ruling. Restrict your description to that which is necessary to
obtain an arrest warrant. Any future incidence involving illegal activity will not be
covered by it. Even if a person posts bail before their arrest, the authorities still have
the right to look into the charges against them.

When it comes to Section 27, the results of the Gurbaksh Singh case, which
involved restricted custody or “deemed custody,” would be sufficient to meet the
requirements of the investigating authority. This would be the case if it were possible
to discover or access information related to a remark made during the event. Up this
case, it’s clear that every charged individual needs to turn themselves up and request
regular bail.

The prosecution may, in suitable instances, seek to have evidence uncoveredas

a consequence of a bail-out defendant’s cooperation entered into evidence under
“Section 27 of the Evidence Act, invoking the concept stated by this Court in State of
U.P. v. Deoman Upadhyaya.”111

The findings in the Gurbaksh Singh case regarding limited custody or “deemed
custody” would be sufficient for the purposes of Section 27 if they meet the
requirements of the investigative authority. If anything related to a remark made during
the incident were to be discovered or recovered, this would be the outcome. It is clear
that in this case, each accused individual must surrender and submit a routine bail
application. The current body of law, the aforementioned court is the one with primary
jurisdiction over granting anticipatory bail.

111
1960 CrLJ 1504.

80
 If the state or an investigative agency so requests, a higher court can review the
legality of a bail order and cancel it if the lower court erred by failing to take into
account relevant information.112

The ruling in SiddharamSatlingappaMhetre case113, which established time

limits on the granting of “anticipatory bail” and other such restrictive restrictions or
terms, is therefore reversed.

Clarification by Constitution Bench on Anticipatory Bail:

After reviewing its prior landmark rulings, the Supreme Court’s Constitutional
Review Bench issued the following clarification regarding the extent within which
courts may grant or deny anticipatory bails pursuant to “Section 438 of Cr.P.C”:

(1) The ruling in, if someone is afraid of being arrested and applies for a restraining
order, they should provide specific details (rather than broad allegations) about
a single crime. The anticipatory bail application should include both the
applicant’s version of events and a summary of the important elements of the
alleged crime. The applicant should also state why he reasonably anticipates
arrest. These are essential so that the court that should consider his case can
determine the seriousness of the threat, the level of mitigation required, and the
specifics of any conditions that should be placed. You don’t have to wait for a
FIR to be filed before submitting an application if the evidence is clear and an
arrest warrant could be warranted.

(2) It is not recommended to notify the public prosecutor at the period of granting
restricted temporary anticipatory bail unless the prospect of arrest is particularly
substantial.

(3) The court will consider the applicant’s role in the crime, “the seriousness of the
offence, the likelihood of the applicant influencing the investigation’scourse or
tampering with evidence (including intimidating witnesses), thelikelihood of
the applicant fleeing justice (such as leaving the country), and other factors
when deciding whether to grant anticipatory bail. The

112
Prakash Kadamv. RamprasadViswanath Gupta, (2011) 6 SCC 1889). This does not amount to
“cancellation” in terms of Section 439(2) Cr.P.C.
113
Sushila Aggarwal v. State, (NCT of Delhi), (2020) 5 SCC 1.

81
 requirements outlined in Section 437 (3) Cr.P.C.” would be appropriate, and the
courts would be within their rights to impose them. Other restrictive
requirements may be placed if the situation or cases require them; nevertheless,
they should not be enforced routinely.

(4) Anticipatory bail is a discretionary matter and court has authority to decide
whether or not to grant it, as well as what conditions, if any, to impose.

(5) If the accused continues to behave appropriately following “the filing of the
charge sheet”, the court may allow the bail to remain in effect until the
conclusion of the trial.

(6) It is not appropriate for a court to issue “blanket” anticipatory bail that would
allow the defendant to commit other offences and then request release from
detention indefinitely. The occurrence in question must be directly related to the
crime or offense for which an arrest warrant is being sought.

(7) A person’s right to request and receive pre-arrest bail does not limit or interfere
with “the police” or investigative agency’s ability to investigate charges against
the person.

(8) Given the circumstances, the findings in Sibbia concerning “limited custody” or
“deemed custody” to meet the needs of “the investigating authority wouldbe
enough to satisfy the requirements of Section 27” in case the recovery of an
article or the discovery of a fact related to a statement made during that event.114

(9) If the accused fails to appear in court as required, evades capture, or attempts
to influence the outcome of an investigation or trial by intimidating or enticing
witnesses, for example, the police or investigating agency may petition the court
that granted the anticipatory bail for a direction to arrest the accused under
Section 439 (2).

(10) If the court that granted bail did not take into account material “facts or crucial”
circumstances, the appeal court might review the ruling and overturn it if
required.

114
State of U.P. v. DeomanUpadhyaya, AIR 1960 SC 1125.

82
(11) It has been observed that the decision regarding anticipatory bail has been
reversed, meaning that no more restrictive conditions can be imposed. The
decision in Salauddin Sheikh and subsequent cases that imposed time limits on
the issuance of anticipatory bail have been reversed.115

Bail and Judicial Discretion:

The grave injustice meted out to those awaiting trial is attributable, in large part,
to the legal and judicial system’s notoriously long delays in case disposal. When a trial
of an accused person is delayed for several years, the entire legal and judicial system is
betrayed by this tragic situation.

What if the trial began? Things could get even worse three, five, seven, or even
ten years late? Even a year’s wait is unacceptable. “A right to a fast trial is an essential
component of criminal justice, and there can be no doubt that any delay in the trial
process is unfair.”116

The presumption correct to a “speedy trial” exists in India even if the “Indian
Constitution does not specifically mention it. Article 21 confers a fundamental right
on every person not to be deprived of his life or liberty except in accordance with the
procedure prescribed by law”, and the Supreme Court 117
has held that “it is not
sufficient to constitute compliance with the requirement of that Article that some
semblance of a procedure should be prescribed by law, but that the procedure should
be reasonable, fair, and transparent.”

So, what would happen if someone’s “right to a speedy trial” was violated and
their trial was postponed for an extended length of time because they were falsely
accused of a crime under Article 21 of the Universal Declaration of Human Rights?
“The accused person may face a lengthy deprivation of his freedom by being
incarcerated. Would it be a violation of Article 21 of the Constitution to try him after
an excessively lengthy amount of time and to succeed in persuading him after such a
trial, entitling him to unconditional release free of the charge filed against him?”

115
Sushila Aggarwal v. State, (NCT of Delhi), (2020) 5 SC 831 (Five-Judge Bench).
116
Ram Govind Upadhyaya v. Sudarshan Singh, AIR 2002 SC 1475.
117
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

83
 In HussainaraKhatoon118, the SC stated as follows:

The State Government must discharge its duty to the people by creating more
courts to handle cases and ensure that justice is administered. There is no way to
overstate this, but it is the one certainty.

“We may point out that it would not be enough merely to establish more
courts but the State Government would also have to man them by competent Judges and
whatever is necessary for the purpose of recruiting competent Judges, such as
improving their conditions of service, would have to be done by the State Government,
if they want to improve the system of administration of justice and make it an effective
instrument for reaching justice to the large masses of people for whom justice is today
a meaningless and empty word.”

“But, subsequently, the Supreme Court continued, Speedy trial is an essential

ingredient of reasonable, fair and just procedure guaranteed by Article 21 and it is
the constitutional the obligation of the State to devise such a procedure as would ensure
speedy trial to the accused.”

State governments cannot ignore defendants’ constitutionally protected right to

a speedy trial simply because they lack the financial resources to invest in modernising
their administrative and judicial systems. States must allocate scarce resources, but no
government has the authority to claim its people cannot pay for fundamental rights.

Thus, it is the State’s constitutional obligation to guarantee that the accused

are tried in a timely manner, and it cannot use inefficiency or a lack of resources to
avoid this responsibility. The state has an obligation under the constitution to provide
a fair trial and must take all necessary steps to that end. It would be unjust for the
Supreme Court to sit on its hands and do nothing to protect constitutional rights like a
quick trial, especially since it has broad power to do so through positive action and
directions to the states.

A judge will decide whether or not to grant bail. The decision to release the
accused on bail must take into account their claims to individual liberty in light of the

118
Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 SCR (3) 532.

84
public interest. According to Article 21 of the Indian Constitution, every citizen is
entitled to a prompt and impartial trial. A more streamlined judicial process is the goal
of this updated Code of Criminal Procedure. The constitutionally protected right to a
speedy trial has been flagrantly violated by the protracted duration of this trial.119

3.3 Different Tendencies between District and High Courts:

Different High Courts and District Courts may have contrasting tendencies
when it comes to bail applications and approvals. Although a complete analysis of bail
patterns in all jurisdictions is not possible, some general observations are as follows:

1- Volume of Bail Applications: As a rule, District Courts hear more cases than
High Courts. Because of the greater volume of cases heard at the District Court
level, more bail petitions are often filed there.

2- Speed of Disposal: The bail application process in District Courts is typically

faster than in High Courts. This is due to the diversity of matters heard in District
Courts and their commitment to speedy resolutions. The processing time for bail
applications may be lengthier in the HCs due to the higher volume of cases.

3- Complexity of Cases: When comparing “High Courts to District Courts”,

complexity and public interest are two factors that favor the former. There
may be major constitutional questions at stake, issues of public interest, or
matters of national importance in these cases. Therefore, High Court bail
applications may necessitate further investigation and research.

4- Judicial Precedents: The decisions of the highest courts, including those on bail,
create binding precedents and general principles of law. In most cases, District
Courts will apply the same legal precedents that were established by the High
Courts in their respective regions. This means that the approach used by District
Courts can be influenced by the decisions made by the High Court regarding
bail.

119
Om Prakash v. State of Rajasthan, 1996 Cri. LJ 819.

85
5- Specialized Bail Benches: It’s possible that the High Court in your country has
a separate bench or department devoted just to bail cases. These benches are
important to impart speedy decisions.

It is necessary to understand that the bail decision are imparted very differently
in various courts and may be changed from one judge to another. These decisions are
affected on the basis of changing interpretation of laws, new laws and other variations
in the judicial system

The bail tendencies of the session court and High courts are also very different.
It has been noticed that the HC will usually grant bail straight if the lower court first
denied it. The bail petition is denied in the same manner as all others by the trial court,
with no judicial opinion being expressed. While every criminal case is unique, the order
dismissing the bail petition is typically boilerplate, stating mechanically that “bail
should not be granted” because the offense is so serious. Consequently, the trial court
will still reject the bail request in writing even if the police reports are authorised.
Regardless of whether the offence is first created or not, this remains true.

“The High Court and the Supreme Court”, take a compassionate approach to
bail and make their bail decisions on a case-by-case basis. The trial court is cognizant
of the reasoning behind the High Court’s and the Supreme Court’s bail denial decisions,
but the learned judge maintains a stance contrary to this. When the case touches the HC,
however, the judges simply note, “in our opinion it seems appropriate to grant bail,”
without offering any further comment. Because of this, the matter is completely up to
the judge’s discretion.

This means that “the accused must wait an additional one to two months for a
hearing before the High Court, despite having constitutional rights, because it takes 90
days to produce the charge sheet for hearing the bail motion.”

“The Indian Constitution places a premium on the protection of human life and
individual liberty and article 21 has always been at odds with the bail provisions of
CrP.C. Sections 437, 438, and 439.”In most criminal procedures, “bail is the
default, but judicial custody” is an exceptional case. Due to divergent interpretations
of the law by the country’s highest courts and lower courts, the bail statute is unclear.

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 There is a discrepancy between the bail laws and the constitutional requirement,
as shown by “the orders of the trial court and the Supreme Court. The trial court
repeatedly rejects the automated deposition plea by restating the case facts and the
gravity of the offence, even though the Supreme Court and the High Court have issued
a bail decision based on their interpretation of Article 21 of the Constitution.”

After the trial judge throws out the women’s bail petition with the others, she
does so without providing any judicial reasoning. Although each criminal case is
unique, the bail petition dismissal order is virtually always drafted in the same
mechanical fashion.

When the writ court determines that the offense is sufficiently serious, even
though it was not initially created, and if the police offer sufficient evidence to support
their case, the bail petition is denied. Nobody may be sentenced, not even the accused.
The Supreme Court’s approach to bail matters differs from that of lower courts.
Granting Bail, based on Money:

It is fact that the surety still “discriminates against the poor” even after
numerous changes in “the Penal Code” is one of the most common complaints leveled
against the bail system. Rich people can usually afford to bail themselves out of jail,
whereas the impoverished who can’t afford to do so often remain incarcerated. Who
gets out of jail and who stays in is determined solely by their financial resources. The
practice of compelling an individual to pay a monetary amount to guarantee their release
from pretrial custody is at the heart of the criticism leveled at the bail system based on
money. Some major arguments against this part of the bail system are as follows:

1. Discrimination Based on Socio-economic Status: Individuals from lower socio-

economic origins, who may not have the financial means to pay for their release,
are sometimes unfairly targeted when monetary bail is required. This creates a
two-tiered system in which those with more financial resources are able to buy
their freedom while those with fewer resources are forced to remain in prison.

87
2. Unfair Impact on Marginalized Communities: Minority groups are
disproportionately impacted by the cash bail system because they are more
likely to be economically poor. Because people from disadvantaged
backgrounds are disproportionately held in pretrial detention, they are more
likely to suffer the negative effects of incarceration, such as losing their jobs,
having their families torn apart, and having less access to legal representation.

3. Presumption of Innocence and Detention: It is damaged by bail requirements

since they amount to punishment before guilt is proven. It leads to the
assumption of guilt and a desecration of rights for people who may be innocent
but cannot afford to pay for their release from pretrial custody.

4. Lack of Individualized Assessment: The monetary bail system rarely takes into
account the specifics of each case and the risks involved. It does not take into
account the defendant’s flight risk, threat to public safety, or likelihood of
appearing in court and instead treats all defendants equally based on their ability
to pay.

5. Financial Burden: When a bail is granted, some kind of financial bond or

collateral security is imposed on the accused. These type of financial constrains
strains the individual and their families.

6. Inefficiency and Overcrowding: These bail are one major factor that has lead
to overcrowding in the police stations, detention centers and they are not able to
afford money bails are being kept in detention causing burden on the criminal
system of the country.

Given the obvious inappropriateness of this approach, one may wonder if it has
any real-world use. The Apex Court’s decision in RudalSah v. State of Bihar120 is a
harrowing account of the worst possible “example of State executive inaction on the
status of destitute people”. After being found not guilty by the appropriate criminal
court on June 3, 1968, he was finally freed from prison on October 16, 1982.

120
(1983) 4 SCC 141.

88
 Analysis on Bail in India:

The “Preamble to the Constitution of India” enshrines the principles and aims
of economic, social, and political justice, and these freedoms have a special relevance
to these tenets.

It is republic’s most serious responsibilities, and achieving it in every sense

would be a great success. Most countries, including India, have normalized the practice
of granting bail quickly and easily to the wealthy and prominent while leaving the
masses, the ordinary, and the poor to languish in prison. As such, it is a symptom of a
larger problem that threatens not only the core principles of justice but also the worth
of individual human beings. Most people who are awaiting trial are unable to read or
write (70.6 percent).121

121
National Crime Records Bureau, Prisons Statistics, Ministry of Home Affairs, 21st Edn., 2015.

89
 Since we don’t have much information about inmates’ financial situations, it’s
helpful to know that the enormous majority of those awaiting trial are members of
economically disadvantaged communities, and that this is reflected in their levels of
literacy. According to data collected by the Ministry of Home Affairs, as of March 31,
2018, 2,31,340 inmates were awaiting trial for violations of the IPC, while another
50,457 were awaiting trial for violations of other laws (such as the Customs Act of
1962, “the Narcotic Drugs and Psychotropic Substances Act of 1985, the Excise Act
of 1944”, etc.). The vast majority of the 12,92,357 under-trials discharged in 2015 were
granted bail.

Thus, the law of bail must strike a balance between competing societal
priorities. Protecting the public from the actions of those who have been defendant of
a crime and granting the accused the assistance of the doubt until he is proven
guilty.122 It is expected that the lower courts would follow this principle. To be sure,
incarceration is the exception rather than the rule; however, the bail provisions should
be interpreted in a way that benefits the prosecution and, by extension, the respite of
society, which may be affected either directly or indirectly by the commission of a
crime. The court does not have to choose between protecting the safety of the
community and protecting the rights of an individual.123

In order to prevent courts from abusing their discretion, a check and balance
system in the system of a competent authority must be put into place. To avoid a blatant
violation of their fundamental rights, bail proceedings for the economically deprived
segment of society must be carried out quickly and with minimal formality.

Bail and other alternatives to incarceration must be decided upon at every turn
in the criminal justice system, including arrest, investigation, trial, and appeal. Bail
legislation should assign equal weight to preserving social order and protecting
individual liberties.

There needs to be a revision to the presumption of innocent because it conflicts

with bail law. If a person awaiting trial is endangered to the same limitations on his
freedom as an incarcerated person, then the two situations would be equivalent.

122
Ramesh v. State of Haryana, 1997 Cri LJ 2848
123
K. Muthuramaligam v. State, 1997 Cri LJ 3501

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Bail protects the presumption of innocence, which ensures that defendants are not
incarcerated before to trial.

The purpose of anticipatory bail is to shield persons against the possiblemisuse

of the law. Anticipatory bail aids in curbing abuse of the justice system in the following
ways:

Anticipatory bail serves as a deterrent against the abuse of law by providing a

legal remedy to those who have a legitimate fear of arrest. It fosters “the values of
justice, fairness, and the rule of law” while ensuring that the arresting power is used
appropriately.

In a recent ruling, the High Court of Kerala ruled that an accused person’s
presence in a foreign nation does not preclude the filing of an anticipatory bail plea.
To address the question of whether or not someone living outside of India can apply for
anticipatory bail, a single bench of the Court referred the matter to a division bench
consisting of Justice Alexander Thomas and Justice C.S.Sudha.

A single bench of Justice P.V. Kunhikrishnan referred to it because it

contradicted the law established by a single bench of Justice Bechu Kurian Thomas in
Vijay Babu v. State of Kerala125, court held that “anticipatory bail” can be requested
from outside of India as the offender appears in court before the final hearing.

In Shafi S.M. v. State of Kerala and Anther126the court held that an accused
sitting in a foreign country cannot file “an application under Section 438 Cr.P.C.,” the
single bench referred Vijay Babu’s case to the Division Bench for further consideration.

The accused is not in the nation at the time the bail application is made under
Section 438 Cr.P.C., but the court has decided to take the application into consideration
nonetheless. The court cited the cases of Shri Gurbaksh Singh Sibbia and Others v.
State of Punjab127 and Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.128
to back its conclusion that courts should be careful not to impose

125
2022 (4) KLT 24.
126
2020 (4) KHC 510.
127
(1980) 2 SCC 565.
128
(2020) 5 SCC 1.

91
needless limitations on the scope of Section 438, since denying bail amounts to
depriving personal liberty.

“Hence, by cumulative understanding of the dictum laid down by the

Constitution Bench verdicts of the Apex Court in decisions as in Gurbaksh Singh’s case
129
, Sushila Aggarwal’s case 130 , which emphasizes on leaning against overinfusion of
restrictions on the scope and ambit of Section438 and also viewing Section438 Cr.P.C.
from the prism of procedure established by law envisaged by Article 21 as well as from
the perspective of the Right to access to justice for an accused involved in a non-bailable
offence in his endeavor to defend his personal liberty, and also taking into account that
the right to travel abroad is a fundamental right and also taking into account the social
reality that lakhs of individuals from the state and other parts of the Country are settled,
by way of employment, etc., in various foreign countries and also the scenario of
travelling abroad by individuals for various other purposes, it is only to be held that the
mere fact that an accused happens to be ina foreign country, at the time he institutes an
application for pre-arrest bail under Section438 Cr.P.C., will not be a ground to hold
that such an applicant cannot legally maintain his plea for pre-arrest bail.”

In restating its opinion, the court also cited several procedural concerns. A
criminal defence attorney who is defending an accused person does not need to file a
vakalat, but rather a memorandum of appearance and a certification that the attorney
has been properly instructed by the alleged person, as per the second proviso to Rule
17(1) of the Kerala High Rules. Rule 31 of the Criminal Rules of Practise (Kerala)
allows for a memorandum of appearance to be filed that an accused individual, as the
court noted. The court made the remark that everyone, regardless of where they were
born, had the same procedural rights.

The legislature and the subordinate legislature have obviously given some
thought to the potential for further roadblocks to an alleged person’s Right to access to
justice when “the accused person” is located outside of India. An accused individual
who is not physically present in India may still retain the services of an attorney of his
choosing by submitting a memorandum of appearance with the court.

129
(1980) 2 SCC 565.
130
2020) 5 SCC 1.

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This sidelight sheds light on “the nature and scope” of the ‘procedure established by
law’ that must pass the test of Article 21.

The Court further noted that Gurbaksh Singh’s case131 and Sushila Aggarwal’s
case132 were cited as precedents in support of Vijay Babu’s argument. The solitary
judge ruled that “it was inappropriate to impose additional restrictions on the scope of
Section 438 of the Cr.P.C.” The single bench ruled that an applicant for pre-arrest bail
from outside of India might do so, but only if the suspect returned to India before the
final hearing by the court could enforce the terms outlined in the statute.

It was further determined that the rulings in Souda Beevi and Another v. S.I.
of Police and Others133 and Shafi S.M. v. State of Kerala and Another134, which
denied the petitioner’s right to apply for pre-arrest bail from outside of the nation, could
be interpreted only in “light of the facts of the case” at hand,

“If SoudaBeevis case135 and Shafi’s case136, are understood as if it has been
laid down as a rule of universal and general application, that the anticipatory bail
court does not have jurisdiction to entertain a pre-arrest bail plea merely because the
accused is abroad at the time of filing of application, then it cannot be said to have
reflect the correct legal position. As already stated hereinabove, such a reading of the
dictum laid down in the aforesaid decisions, is not warranted or justified.”

Nonetheless, the court added that anticipatory bail might not be warranted if the
suspect had fled the country knowing that a non-bailable offense had been filed against
him or her. With the court, discretion in such situations must be used “in a sound and
wise manner”:

“if such an accused had absconded from India and had gone abroad knowing
fully well about the registration of a crime in respect of a non bailable offence, then
thereafter, though he may technically have the locus standi to maintain a pre-arrest
bail plea, but if as a matter of fact, the Court is convinced that he has absconded and

131
(1980) 2 SCC 565.
132
(2020) 5 SCC 1.
133
2011 (3) KHC 795.
134
2020 (4) KHC 510.
135
2011 (4) KLT 52.
136
2020 (4) KLT 703.

93
fled away from the law enforcement agencies, etc., then it may not be right and proper
exercise of jurisdiction to grant interim bail to such an accused who is abroad.”

The applications titled as such have been filed in Anu Mathew v. State of
Kerala137case “under Section 438 of Cr.P.C. in an effort to secure anticipatory bail” for
the applicants named therein in light of fact, they are named as defendants in the
aforementioned cases.

“Section 438 of Cr.P.C.” was created in response to recommendations made in

“the 41stLaw Commission Repor”t, which we shall discuss first. We will then move on
to discuss numerous case laws on the matter, as well as the reference issues and findings
thereof. After that, we will dive into the specifics of both cases to wrap upthe
remaining issues once and for all. Remember that the proviso to “Section 3 of the Kerala
High Court Act, 1958” mandates that the Division Bench resolve the primary concerns
in light of the referral with the reference problems. Following the procedure outlined
below, we shall proceed.

Section 438 of Cr.P.C. was created as a direct result of the recommendations

made in the 41stLaw Commission Report. It’s addressed the issue of allowing courtsto
release suspects on bond before their arrest, a practice known as anticipatory bail.
Paragraphs 320 and 321 of the report read as follows:

“This need for anticipatory bail typically develops when powerful individuals
attempt to shame their competitors by falsely accusing them of wrongdoing andhaving
them held in jail for a few days. Recently, this trend has been steadily increasing, likely
due to the heightened political competitiveness. Other than in the case of fabricated
accusations. When there is evidence to suggest that the defendant would not abuse his
freedom while out on bond, such as by fleeing the country, the court may grant bail. It
doesn’t make sense that he has to be taken into custody, held for a few days, and then
asked for bail.

“The issue of whether or not the Act should specify circumstances under
which anticipatory bail may be granted solely was thoroughly studied by us. However,
we discovered that listing all of those prerequisites may be impractical.

137
2023 LiveLaw (Ker) 198.
94
What’s more, imposing such conditions could be seen as prejudging the entire case,
at least partially. Therefore, we would rather not limit the court’s power in the statute
itself and would instead leave it to its discretion. Without a doubt, superior courts will
appropriately utilise their discretion when granting anticipatory bail, and they will
exhortation from making any explanations that could compromise the accused’s right
to a fair trial in the order of release.”

Legal assistance services at preliminary stages, the promptness with which

individuals accused are brought to trial, the effective exercise of police authority, and
the establishment of procedures to monitor police power are all urgent matters that need
to be addressed right away.

The current “bail system” is broken and needs to be reformed. Clarity is needed
to replace ambiguity on issues like jurisdiction, bail being granted at different stages of
the process, and “the scope of the court’s authority to grant or deny bail”.

Bail bond and surety amounts are determined solely by the decision of the court
and are not issue to any statutory cap. There needs to be a slew of provisions for various
groups.

Judges now have leeway to grant bail at their own discretion. In most cases, a
bail order issued by a lower court will be revoked by the Supreme Court. To prevent
judges from abusing their authority, there must be reasonable standards for deciding
whether to grant or deny bail.

The Cr.P.C. merely provides broad strokes of the bail provision while
describing the deliberation with which judges exercise their discretion. If there isn’t
already a separate code addressing bail, it should do so or provide detailed provisions
on its use, applicability, granting, refusal, checks and balances on “the powers of police
and courts, remedies for the abuse of power by the court, amount of bail bondor
sureties, and failing to submit thereon in a timely manner”.

If a judge or magistrate often releases defendants on bail without good cause,

they should be held accountable.

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 Bail decisions by judges and magistrates should not be left to their own
discretion. The officer’s responsibility can be established and appropriate disciplinary
action taken if it is shown that the officer acted unreasonably “in granting bail to the
accused.”

“Anticipatory bail” should be granted to those who meet certain criteria, which
should be established by law.

In light of Article21 of the Indian Constitution, the judicial official granting bail
to the accused must have a restorative attitude.

Pretrial detention should be kept to a minimum if at all possible. Detention is

counterproductive since it harms the accused, costs the government money, and may
have a negative effect on the accused’s propensity to commit other crimes; it also has
limited reformative potential.

Article 21 of the Indian Constitution declares, “No person shall be deprived of

his life or personal liberty except according to procedure established by law,” which is
a guarantee of every Indian citizen’s right to freedom.

Article 21 guarantees citizens “the right to life” and personal freedom, but it
also necessitates finding a middle ground between those two “rights and the needs of
society as a whole.” If a person breaks the law, he or she must face the consequences
specified by that law, which may include having some or all of their freedom taken
away, depending on “the seriousness of the crime”.

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 CHAPTER–lV

JUDICIAL APPROACH

“Everything” in this world needs it’s “final finishing touch” before entering into
the society for its use and recognition. The same rule of “final finishing touch” is exactly
application in the field of legislations “which have been by the legislature of the
country”. Whether a piece of legislation is right or wrong or whether it will satisfy and
obtain the objects for which it was enacted, has to pass through the “Testing
Laboratory” of the judiciary. Thus, judiciary acts as a final finishing authority for any
legislation enacted by the legislature. So, the fairness and foulness, limits or beyond
limits, application or non-application, void ultra vires or ultra-vires, is decided by the
judiciary. The provisions relating to bail and anticipatory bail have gone under a drastic
changes due to the various Amendments made by Indian Parliament. Hence, an attempt
has been made in this chapter to analyse and study law how Indian judiciary has acted
towards these provisions relating to bail and anticipatory bail and various amendments
in “the Code of Criminal Procedure, 1973”. Some of the leading judicial
pronouncements have been discussed here because thousand and millions of cases have
been decided in India by Subordinate and Higher Judiciary, which is an impossible task
to accomplish.

In this regard, it will be relevant here to mention that the term “anticipatory bail”
is commonly used in legal contexts, but it has no statutory basis. Although anticipatory
bail isn’t explicitly mentioned in either section 438 or the marginal noteto that section,
it is possible to ask for bail before an arrest is made, hence the term is commonly used.
However, anticipatory bail is an inaccurate term. The court does not currently award
anticipatory bail. In the case of an arrest, the defendant will be released on bond if
anticipatory bail is ordered by the court.

“Anticipatory bail” was introduced by “the Law Commission of India” in its

41stReport in response to a split in the judiciary over whether or not a High Court
possessed inherent powers to make such an order and to prevent “influential persons”
from falsely accusing their rivals of criminal activity in order to disgrace them or gain
some other advantage (such as keeping them in jail for a few days).

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 Like most things, this section of the code has a potentially negative aspect.
While the original goal of this rule was to protect the innocent from being wrongfully
convicted, it has since evolved into a tool that even violent criminals and repeat
offenders can utilize to their advantage.

Section 438 of the current Code of 1973 does not have a direct predecessor in
“the Code of Criminal Procedure, 1898 (Old Code).”Under the former Code, the High
Courts debated whether a court might order bail in anticipation of arrest. However,
the prevailing opinion held that it lacked such strength.

The absence of a definition for the term “anticipatory bail” in the Code makes
it misleading, as bail is usually not granted prior to an arrest. If an individual is to be
released on bail upon arrest, an order known as “anticipatory bail” must be obtained.
It is possible to grant “anticipatory bail” in exceptional circumstances, such as when a
person seems to have been falsely implicated or a frivolous case has been brought
against them. Additionally, there must be reasonable grounds to believe that the
accused will not abscond or abuse his liberty while out on bail. This power can only
be granted to the highest courts in the land, such the High Court and the Court of
Session, because of its singular and irreplaceable character.

An “anticipatory bail” order protects the defendant from being held in “police
custody” after being arrested for the offense or offenses for which the order was
obtained. In contrast to a post-arrest bail order, the individual “in whose favour it is
made will be released on bail” if arrested for the charge. When making an arrest, a
“police officer” or other authorized person must physically touch or confine the person
being arrested unless that person verbally or physically submits to the arrestingofficer’s
custody, as required by Section 46(1) of Cr.P.C.

The persistence of a section 438 direction is to make available conditional

protection from this ‘touch’ or ‘confinement.’ Ordinary bail orders are issued after an
arrest has been made, releasing the defendant from police custody; anticipatory bail
orders are issued prior to an arrest being made, releasing the defendant from police
custody immediately. If you’re arrested for a crime that doesn’t qualify for bail, you’ll
have to spend some time in police custody.

98
 Thus, the crime or crimes for which he has been detained, granting the “accused
person” anticipatory bail would be a contradiction in terms. It must exhaust Section 437
or 439 of the Code before being granted bail for the offence or offences for which he
was arrested.

Legal Provision of Anticipatory Bail:

“Anticipatory bail” is not defined in the Criminal Procedure Code of 1973. High
Court and Court of Session anticipatory bail petitions are authorised by Section 438 of
the Code. Judges have the discretion to grant anticipatory bail in cases when they have
reasonable grounds to suspect the commission of a non-bailable offence. The defendant
can be released on bond before their arrest if bail is set in advance. Furthermore, evading
arrest is not what the term “anticipatory bail” means; rather, it denotes a release from
prison. Although an officer has the authority to make an arrest, the suspect must be
released without delay. There were no provisions for anticipatory bail in the original
1898 Criminal Code. High Court and Court of Session anticipatorybail is recommended
in the 41st Report of the Law Commission. The commission determined that
“anticipatory bail” was needed most often when powerful persons tried to fraudulently
incriminate their rivals in cases to shame them or achieve other purposes by imprisoning
them for days.

It is suggested in the study that Section 438, Cr.P.C. be included. Anyone who
is afraid they will be arrested for a crime for which bail is not an option can apply under
Section 438.138

If a court does not have jurisdiction over a crime, it may still grant the defendant
“bail under Section 438.”A court having authority over his regular residence may hear
his plea for relief. With a court appearance order, short-term anticipatory bail may be
issued. Thus, only the Court having jurisdiction over the accused offence should decide
a Section 438 application.139

The provisions of Section 438(1) of the Code govern the issuance of

“anticipatory bail.” There must be “reason to believe” that the petitioner will be arrested
for a crime for which bail cannot be set for the petition to be granted. There

138
41st Report of Law Commission of India, on Code of Criminal Procedure, Vol. J. p. 311 (969).
139
Neela J. Shah v. State of Gujarat, 1998 Cri LJ 228 (Guj).

99
must be “reason to believe” that the applicant would be subject to such an arrest for
the application to be approved.A person seeking refuge must prove more than simply
an unreasonable fear of being falsely accused and imprisoned before the court will grant
his request. For the Court to grant the applicant’s request, there needs to be proof that
he is likely to be arrested for a crime that cannot be waived through bail. It is not
possible to utilise vague and generalised arguments under Section 438(1) to
permanently protect oneself from potential arrest.140

The court has already decided that a defendant will be released on bond when
they issue anticipatory bail before their arrest even occurs. The ruling does not grant
238 person bail before his arrest, despite the “anticipatory” label; bail cannot be
enforced until the arrest has taken place. On the other hand, anticipatory bail ordersare
granted before an arrest takes place and so take effect immediately after the arrest,
which is the main distinction between the two. An “Anticipatory Bail” application may
be filed in accordance with the terms of Section 438 of the Criminal Procedure Code.
Even if bail is unavailable for the offence that a person is expected to be charged with,
they can nonetheless ask for bail in advance. A person who is falsely accused or
charged, usually due to professional or personal animosity, might be protected through
anticipatory bail, which ensures his release before his arrest.

Anyone wishing to be released on anticipatory bail must submit an application

to either the High Court or the Court of Sessions, referencing Section 438 of the Code
and providing strong arguments to back up their request. The court will decidewhether
to grant bail after considering the petition’s legality in light of the case’s particulars and
other relevant circumstances. Therefore, the perpetrator would be released from jail
immediately upon capture by making use of the anticipatory bail.

Object of Anticipatory Bail:

The object of Section 438 is to protect an individual from being harassed or

discouraged unduly if they fear being arrested for a crime that cannot be released on
“bail.” An application for this immunity could be submitted to either “the High Court
or the Sessions Court”. An anticipatory bail order protects the defendant from being
held in police custody after being arrested for the offense or offenses for which the

140
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 AX 1632.

100
order was obtained. In contrast to a post-arrest order of bail, the person in favour of
whom it is granted will be freed on bail that he is subsequently detained on the
allegation in connection to which the direction is made. When conducting an arrest, a
law enforcement officer or other authorized individual must comply with the
requirements of Section 46(1) of the code, “shall actually touch or confine the body of
the person to be arrested, unless there be a submission to the custody by word or
action.”A Section 438 direction is meant to provide limited protection from this type
of “touch” or detention.141

Anticipatory bail is intended to prevent the applicant from being subjected to

unnecessary harassment therefore, the denial of his freedom of movement. Anticipatory
bail, also acknowledged as pre-arrest bail, is only available for crimes that are not
entitled for bail, as bail is a constitutionally protected right for those accused of
committing certain types of crimes. Anticipatory bail is designed to keepan accused
individual out of jail and out of public disgrace. The use of Section 438 is exceptional
and should be reserved for extreme circumstances.

Anticipatory bail is usually only granted in extreme cases. It would be

inappropriate to grant anticipatory bail if it could be argued that the accusation against
the petitioner was made mala-fide or with ulterior motive since the petitioner’s behavior
in not responding to summons issued demonstrated that he meant to hide from justice.142

The persistence of Section 438 is to shield defendants from being unfairly

treated during their pre-trial custody. Even if a Court has taken cognizance of the
complaint or an investigative agency has presented a charge-sheet, we do’t think that
should preclude the respective Courts from granting anticipatory bail in appropriate
cases. The courts should take into account the nature of the alleged crime and “whether
or not” a custodial interrogation is necessary before deciding “whether or not” to grant
anticipatory bail, but this should not be interpreted as a bar to the granting of bail simply
because a case has been taken cognizance of or a charge sheet has been filed. Even after
taking cognizance or filing a charge sheet, the Court of Sessions or the High Court, in
our opinion, has the ability to give anticipatory bail in

141
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.
142
Lilaram L. Revani v. R.D. Gandhi, 1998 Cr LJ 14 (Guj).

101
situations involving non-bailable offences under Section 438, if the circumstances so
justify.143

In non-bailable matters, “anticipatory bail” can be obtained from “the Court of

Session or the High Court “by proving that the accused would be apprehended soon.
In contrast to anticipatory bail, which provides entire immunity from arrest, this bail
merely tells the arresting officer to release the accused on bail upon arrest, if the accused
furnishes the bond. A crime that normally cannot be arrested for is treated as if it were
bailable. An individual’s freedom is guaranteed through anticipatory bail, which is not
an endorsement of illegal behaviour or immunity from any potential prosecution. If an
applicant has probable cause to believe they will be arrested for a crime that does not
qualify for bail, “the High Court or the Court of Session” cangrant anticipatory
bail.144

The first portion of this section lays out the parameters under which an
individual may file for anticipatory bail. For the second section, it’s clear that either
“the High Court or the Court of Session” has jurisdiction. That they have joint
jurisdiction can be seen as the sole focus of the second portion. A court’s jurisdiction
remains in effect until it is either explicitly or implicitly revoked. However, the
provision itself does not state explicitly that jurisdiction is being removed under any
circumstances. There also appears to be no implied termination or removal of any
court’s jurisdiction. The legislature clearly did not intend to maximum the authority of
either “the High Court or the Court of Session.” The legislators clearly intended thisto
be the case, as seen by sub-section (3) of both Section 397 and Section 399 of the
preceding code.145The anticipatory bail right was established by statutes enacted long
after the Constitution was ratified. The Constitution’s Article 21 does not mandate it.146

Regular Bail vs. Anticipatory Bail:

“Bail” and “anticipatory bail” mean the same thing and can be used
interchangeably. When someone is given bail, they are released from police custody

143
Bharat Chaudhary &Anr. v. State of Bihar &Anr., AIR 2003 SC 4662.
144
Ashok Daga v. State, 1984 GLH 758 (para 4).
145
The Code of Criminal Procedure, 1898.
146
State of MP v. R.K. Balothia, AIR 1995 SC 1198

102
after their arrest. When someone is granted anticipatory bail, they are released from
detention immediately upon their issuance. Therefore, the release on bond prior to arrest
and the release on bail following arrest are the same thing. Based on the code’s
organisation and the language of Section 438.Evidently, the legislature’s intention
was for anticipatory bail to be regarded as an extension of bail rather than a distinct
entity.147

In the event that the defendant is later arrested for the offence for which the
direction was given, a judicial process known as a pre-arrest bail direction orders his
release on bond. Conditional immunity from physical contact is designed to be granted
by a direction under “Section 438 for the purposes of Section 46(1)”
incarceration.148There is little to no difference between 438 and 439. Consideration of
the case’s merits is essential when determining whether to grant bail to the defendant.
In most cases, nevertheless, neither anticipatory nor regular bail will be issued.
Anticipatory bail ought to be granted only in exceptional cases due to the rarity of the
chance. By using its discretion, the court might decide whether a case warrants the
granting of anticipatory bail.149

Thus, regular bail is issued after an arrest and resulting in release from police
custody, while anticipatory bail is provided prior to an arrest and has immediate effects.
For crimes that cannot be released on bail, being taken into police custody is a given.
For the crime or crimes for which an individual is being held in custody.The concept of
“anticipatory bail” is inherently contradictory. Before being granted bail, the accused
must pursue all available options under Section 437 or Section 439 of the law, which
pertain to the offence or offences for which he was detained.150

Regular Bail while Anticipatory Bail is not required by Law:

Thus, the first rule of statutory interpretation, a provision of a statute should be

read according to its plain and natural meaning unless doing so would result in an
absurdity. Tindal, C.J.’s ruling in the Sussex Peerage case151, is still the gold standard.
The aforementioned criterion states that interpreting statutory language in its natural

147
Natturasu v. State, 1998 Cri LJ 1762 at p. 1765 (Mad).
148
Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 at pp. 970-71.
149
Jai Prakash Singh v. State of Bihar and Another (2012) 4 SCC 379.
150
http://www.lawctopus.com/academike/anticipatory-bail-india-critical-analysis/
151
Sussex Peerage case (1844) 11 Cl and F 85.

103
and ordinary sense is sufficient if and only that the words of the law are clear and
unambiguous. In such situations, nothing but the words themselves can adequately
convey the legislator’s intent. Only in cases of ambiguity, obscurity, or inconsistency
within a statute does it become essential to resort to construction or interpretation. A
provision of law must be interpreted with the meaning provided by its unambiguous
language, with proper attention of the overall legal structure. When a statute has precise
and unmistakable language, its intended reach cannot be extrapolated.152

Laws must be read literally in order to avoid ambiguity, and no words shall be
added, altered, or modified unless it is clearly necessary to do so to prevent a provision
from being unintelligible, absurd, unreasonable, unworkable, or totally irreconcilable
with the rest of the statute.153 Although it is possible to get anticipatory bail and then
regular bail, Section 438 does not allow for this. No rule of construction permits a
reading of Section 438 to incorporate such a mechanism with global applicability.

It is possible to receive anticipatory bail from a “Court of Session or the High

Court.” When a suspect is afraid for his or her safety and the place of the alleged crime
are in different states, the law has been unclear as to which court has the power to issue
anticipatory bail.Although the majority of High Courts accept the dicta that only a
“Court of Session or the High Court” having jurisdiction over the place of the alleged
crime can do so, this is not the case.

Several State High Courts, including those in “Rajasthan, Madhya Pradesh,

Gujarat, and Delhi”, have taken the firm stance that “a court within whose jurisdiction
a petitioner anticipates arrest for a non-bailable offence is competent court to grant
anticipatory bail” and that “a court has no jurisdiction to grant anticipatory bail to the
petitioner against whom a case has been registered in another state.”

Therefore, the Kerala High Court has determined that unless the alleged crime
was committed within Kerala, an injunction under Section 438 will not protect an arrest
that was made outside of the state. Even if other courts have held differently,the
Bombay High Court noted that if a crime is committed in one state but the arrest is

152
Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111.
153
Ibid.

104
anticipated to occur in another, then a court in another state can hear an anticipatory
bail application. This is the novel interpretation offered by the High Courts of
Karnataka and Gujarat, which held that:

“Section 438 Cr.P.C. provides relief to the person apprehending arrest even
though the court may not have jurisdiction to deal with the offence. He can seek relief
in the court within whose jurisdiction he ordinarily resides. Anticipatory bail of
limited duration can be granted with a direction to the petitioner to approach the court
concerned.”154 In light of this, a Section 438 application should only be decided by the
court with jurisdiction over the site where the alleged offence was committed.

7.1.1 Considerations to Exercise Discretion:

Since the decision of whether or not to grant bail depends on a number of

factors, the Courts have held that the broad discretionary power granted by the
Legislature to the higher echelons of “the criminal justice delivery system” cannot be
put in the form of straitjacket rules for universal application.

A fact that proves to be crucial in one context does not necessarily prove to be
so in another. Section discretion, however, must be exercised with the utmost care and
caution, according to the circumstances. “Section 438(1) of the Code” specifies the
conditions that must be satisfied in order for anticipatory bail to be granted. In order
to have bail set for a crime for which there is reasonable suspicion of imminent arrest,
the petitioner must provide evidence of this. It is reasonable to assume that there should
be valid reasons to suspect that the applicant could be detained in this way. Because
fear is not the same as belief, the petitioner needs to show more than just an illogical
fear that someone may accuse him to justify an arrest. The applicant’sopinion that “he
may be arrested for a non-bailable offence must be supported by objective evidence for
the court to decide if the applicant has grounds to believe he may be arrested. Invoking
Section 438(1) with broad and general accusations will not shield you from arrest
indefinitely.” Judges in the HC and CS are required to use their discretion when
deciding whether “to grant anticipatory bail” in cases where a prima

154
Shivam Gill, “Anticipatory Bail”, online available at:
https://www.legalserviceindia.com/legal/article-7345-anticipatory-bail.html
105
facie case exists. Code Section 437 does not allow it to passively await the decision of
the applicable Magistrate. Doing so would violate the spirit of Section 438.

Anticipatory bail is usually granted when it seems that the intended accusation
is not driven by a desire to promote justice but by some ulterior motivation, with the
goal of injuring and humiliating the applicant through detention. Nevertheless, the court
will deny the requested release if the applicant’s past indicates a high likelihood of
evading justice if granted anticipatory bail. This is not to say, however, that the inverse
is always correct.

Anticipatory bail should be granted where there is little threat of absconding and
rejected when the impending indictment seems to be motivated by mala fides, but there
is no such rule that applies everywhere. The proposed charges’ seriousness and type,
among other things, will determine whether or not a court grants anticipatory bail. “the
circumstances that are likely to lead to the making of the charges, the likelihood that
the applicant’s presence will not be secured at the trial, the likelihood that witnesses
will be tampered with, and the larger interests of the public or the State.”

It would be incorrect to presume that an applicant’s ability to flee is proportional

to their wealth or power, any more than it would be to believe that their lack of poverty
or authority makes them less likely to commit a crime. In a bail hearing, the public
interest may be considered and rejected in relation to the detention of an individual in
investigational custody. Reason being, releasing the person on bond could cause the
inquiry to run behind schedule, which could result in contaminated evidence.

The right to an anticipatory bail hearing is not guaranteed to a defendant, as

stated in a recent Supreme Court decision. It cannot be deemed a component of “Article
21 of the Constitution” since it was provided long after the Constitution went into effect
and is mostly a privilege granted by statute. Since it does not relate to any particular
type of crime, the claim that it breaches Article 21 cannot be sustained.

The courts have been tasked with conducting a thorough assessment of the facts
and avoiding any bias in their findings. Protecting both citizens’ rights and the smooth
functioning of the criminal justice system is a balancing act. Investigating

106
agencies can only uncover the full scope of the criminal conspiracy that led to the
catastrophe at hand through the custodial interrogation of such suspects.

Therefore, where it can be proven that someone was acting out of malice or
corruption, the courts have a duty to protect the public from harassment and unlawful
imprisonment. In order for the court to use its authority under this provision, the
applicant must reveal their belief in enough detail so that the court can determine
whether it is reasonable.

Courts are hesitant to place needless limitations on the scope of law 438 since
doing so violates an individual’s rights, particularly because the legislature did not
establish such restrictions in the wording of that law. The High Court or a Court of
Session takes into account all pertinent facts and circumstances while determining
whether or not to grant anticipatory bail. An individual’s right to freedom cannot be
conditional on conforming to unreasonable constraints, which is why the introduction
of excessive restrictions and conditions into Section 438’s provisions could render them
illegal. We must not disregard the beneficial provision of Section 438.The court may,
however, impose reasonable conditions on the anticipatory bail in order to keep the
defendant from obstructing the inquiry. Preliminary bail should not be subject to
excessively severe, burdensome, or unreasonable conditions that would render it
useless. The accused can only be subjected to the terms listed in this Section by the
court.

To exercise the power conferred by Section 438, it is enough to show that a

reasonable suspicion of an impending arrest exists; an F.I.R. is not required. If the
petitioner has not been arrested yet, an F.I.R. does not prevent anticipatory bail from
being granted. No one can use the clause to get an accused person released once they’ve
been arrested. Furthermore, the safeguards provided by Section 438 of Cr.P.C. have
given the Court the means it requires to refrain from limiting individuals’ freedoms. A
mere technicality, such as the provision of the challan, cannot justify the granting of
anticipatory bail.

A single Supreme Court justice addressed the duration of an anticipatory bail

order in the case K.L. Verma v. State of Maharashtra.155 It is not possible to avoid

155
1996 (7) SCALE 20.

107
the regular court that would hear the case by getting anticipatory bail while an arrest
is about to happen. Because this is just a preliminary investigation, “the Court of
Sessions or the High Court” shouldn’t release the accused on anticipatory bail until it
has all the facts.

After an investigation is finished or a charge sheet is submitted, the regular court

should review the evidence and determine next steps; the duration of an anticipatory
bail order is proportional to the seriousness of the allegations. Since the traditional legal
process cannot be circumvented, the court felt the need to stateunequivocally that
an anticipatory bail order will expire prior to the conclusion of the trial. The accused
will have sufficient time to petition the regular court for release, and the regular court
will have enough time to decide the bail motion; the restricted period will be determined
by the facts of the case. In order for the accused to remain free until the bail application
is determined, they may be given anticipatory bail. In certain cases, the accused may be
granted anticipatory bail, which allows them to remain free until the bail application is
ruled upon.

The dictum laid in K.L. Verma’s case 156

was upheld in “Salauddin
Abdulsamad Shaikh v. The State of Maharashtra157 and Sunita Devi v. State of
Bihar”158 and it was decided that “anticipatory bail orders should only be for a set
amount of time, and that they should expire normally on the expiration of that time or
any extension thereof.”

Since the normal Court will have a better understanding of the evidence,
anticipatory bail courts shouldn’t keep hearing cases after the investigation is finished
or a charge-sheet is submitted. An order issued “under Section 438(1) of the Code” can
stay in effect forever, but the courts can limit it to the time between when it’s issued
and when a “First Information Report” (FIR) is filed regarding the order’s subject
matter if there are strong reasons to do so. A bail order pursuant to Section 437 or 439
of the Code had to be obtained by the petitioner within a reasonable period following
the filing of the FIR.

156
K.L. Verma v.State, 1996 (7) SCALE 20.
157
1996 SCC (1) 667.
158
2005 (1) SCC 608.

108
 After an investigation is finished and a charge-sheet is issued against the
accused, the accused cannot use Section 438 Cr.P.C. to avoid surrendering to the Court.
Since an accused may choose not to come before the Court at any point throughout the
trial, this interpretation runs counter to “the provisions of “Section 438 Cr.P.C.” and is
a violation of the law.”

If an individual is arrested during the investigative phase, he or she can apply

for bail under “Section 438 of Cr.P.C”. If the prosecution is able to establish probable
cause and include the suspect in the charge sheet, the suspect must turn himself into
police custody and apply for ordinary bail. An individual against whom charges have
been filed cannot evade trial on the basis of “an order granting Anticipatory Bail.”

In the event of an arrest, an indefinite bail order may be granted under Section
438. An anticipatory bail order allows the court to place conditions on the defendant’s
release from jail in the case of an arrest, such as the need that he cooperate with the
investigation. It would be unreasonable to require the accused to reapply for regular bail
before the trial court after they have already been granted bail in response to an order
from the High Court or the Court of Sessions. The Supreme Court declared the law laid
down in the cases of K.L. Verma case159, Salauddin Abdulsamad Shaikh case160and
Sunita Devi case161 as per incurium and held that:

“The validity of the restrictions that the accused released on anticipatory bail
must submit himself to custody and only thereafter can apply for regular bail is contrary
to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21
of the Constitution.”

An assumption of rationality and justice is made in Article 21 of the Indian

Constitution. The defendant is ordered to surrender to detention after the allotted time
has elapsed. Limiting the length of time an order under this section can remain in effect
is an unreasonable limitation on the court’s discretion. Although anticipatory bail is
meant to provide protection until the trial is over, the court has the power to revoke it
in light of new evidence or circumstances, or if the defendant has abused the

159
1996 (7) SCALE 20.
160
(1996) 1 SCC 667
161
2005 (1) SCC 608)

109
court’s indulgence. A time restriction on anticipatory bail would be unconstitutional
under the Constitution. The Sibbia case’s official legal opinion from Bench.

After the court’s brief observation of the anticipatory bail period ends, the
accused would be required to petition for bail through the regular court system, as
section 438 Cr.P.C. would have expired. Lawmakers were unprepared for this
limitation. The Constitution Bench made it quite clear in the Sibbia case that revising
section 438 of the Criminal Procedure Code is superfluous. Given the authoritative
pronouncement made by the Constitution Bench, it is not possible to modify the period
of the bail order granted under section 438 of the Cr.P.C.

An individual’s right to freedom is both their natural and fundamental right. The
legal system is set in motion when someone is accused of committing a crime so that
they can be apprehended, tried, and punished if they are found guilty. A man’s freedom
is taken away when he gets arrested. Here, the concept of bail comes into play; it is
central to Indian criminal law and a universally accepted norm in the administration of
justice. In exchange for his pledge to appear in court at a later date and to serve any
sentence he may get, the judge releases him on bail. Article 21(1) of “the Constitution
of India recognizesthe right to liberty as a fundamental right, and Article 22(2) as a
working theorem and its corollaries are found in Sections 436, 437, and 439 of Cr.P.C.”

In its 41st report, India’s Law Commission argued that Anticipatory Bail should
be made into law. Anticipatory bail is addressed in Section 438 of Cr.P.CThis provision
can be used by a suspect in an offence for which bail cannot be granted in order to get
ready for his possible arrest. A bail order is a directive to release a suspect on bail prior
to the suspect’s arrest. When an accused person posts bail, they are temporarily released
from jail pending trial in exchange for a financial promise that they will appear in court
on their scheduled court date.

Free a prisoner on bond, or make sure they get out of jail. Money, property, or
some other form of security offered to or pledged to a court by someone accused of a
crime in exchange for their release from jail pending the outcome of the criminal case.

Section 2(a) of Cr.P.C., 1973 defines “bailable offence” and “non-bailable

offence” as follows, even though the bail system is not detailed in the statute.

110
Offences that are not specifically mentioned in the First Schedule or that have been
amended to make them bailable are not bailable at this time. 162 The amount ofsecurity
the accused must pay to obtain his release is not specified in the Criminal Procedure
Code. Therefore, the court can limit the bond’s total amount if it sochooses.

The Supreme Court noted in the case of SidhramMhetre v. the State of

163
Maharashtra , that if an accused person has voluntarily participated in the
investigation, is willing to help, and has no plans to evade trial, then there is no need
to subject them to prison interrogations. The court also made clear in this decision that
just because section 438 excise power is exceptional doesn’t mean it can only be used
in the most exceptional of circumstances.

The option to grant or deny bail ultimately rests with the Court, according to the
Hon’ble Apex Court’s opinion in Sanjay Chandra v. CBI.164 When determining
whether to approve or reject, a lot is dependent on the details of each case. The
community’s animosity against the accused is not, however, a valid reason to reject
bail. The primary objectives of the bail system in criminal cases are to release the
accused from custody, absolve the state of the duty to house him until trial, and
guarantee that the accused will bow to the court’s authority and be present whenever
it is required, irrespective of whether he has already been found guilty or not.166

In Aasu v. State of Rajasthan167 , the Apex Court held that bail hearings must
be completed within a week.

If the “public prosecutor” finds out from the investigating officer that no FIR
was filed, then he or she would likely conclude that it was insufficient evidence to
justify releasing the defendant on “anticipatory bail.” The judge will agree, and your
attorney will be instructed to withdraw the request for anticipatory bail. If the police
have formed the intention to arrest, the lawyer will ask for seven days’ notice orally.
The judge will likely accept the aforementioned pleas. The appropriate instruction
will be sent.

163
Section 2(a) of the Cr.P.C., 1973
164
(2011) 1 SCC 694
165
(2012) 1 SCC 40)
166
Ibid.
167
Cril. Appeal No. 511 of 2017 Dt.09-03-2017

111
 The term “notice bail” is widely used to describe this. The Sessions Court’s
denial of bail would prompt an appeal to the High Court. It is possible to take the case
to the Apex Court in the event that the High Court also rejects the bail. With the filing
of the FIR, the investigating officer will proceed to issue an arrest warrant for the
accused. Requesting anticipatory bail as soon as the notice is received requires
following the identical procedure mentioned above.In the event that a bailee fails to
comply with the court’s orders, the court may direct the individual’s arrest and
subsequent commitment to custody.

Landmark Judgements:

Despite the ruling in Kanshi ram v. State of Punjab168, the petitioner is no

longer eligible for statutory “bail under Section 167(2)” of Cr.P.C. A petition for
statutory “bail under Section 167(2)” has been submitted by the petitioner due to the
prosecution’s failure to appear in court.

The petitioner in Shri Mehafuz Ali Khan v. CBI Police Station169, caseis
entitled to statutory bail “under Section 167(2) of Cr.P.C.”, since the petitioner’s arrest
was unlawful. Even if the charge sheet wasn’t filed until much later, thepetitioner was
still eligible for statutory bail.

In State of M.P v. Pradeep Sharma170, the Supreme Court has ruled that an
individual is not eligible for anticipatory bail if he or she is a proclaimed offender under
Section 82 of the Code and is attempting to evade the execution of a warrant by hiding
or fleeing.

In the landmark case Sushila Aggarwal v. State of NCT of Delhi, the Apex
Court ruled that “anticipatory bail” cannot be subject to a time limit.”TheSession and
The High Court” are the exclusive venues for “anticipatory bail hearings”.

Anyone may seek anticipatory bail in the High Court or the Court of Sessions
under Section 438(1). The accused need not present any exceptional circumstances for

168
1961] INSC 230.
169
2008 (3) KarLJ 117.
170
(2014) 2 SCC 171.

112
the court to utilize its discretion “to grant anticipatory bail.” Each anticipatory bail case
is unique and must be evaluated based on its particular set of facts and circumstances,
therefore there is no one-size-fits-all formula that can be given. Given the extreme value
of individual freedom, it is only appropriate to limit such freedom under exceptional
circumstances.

As stated in “Article 21” of the Indian Constitution, “No person shall be

deprived of his life or personal liberty except according to procedure established by
law.” It protects people from being arbitrarily detained or arrested, whether or not they
are “accused,” and hence upholds the presumption of innocence until guilt is proven.
Preemptive release on bail is guaranteed by law. Statutory rights are those that exist
because of laws and statutes. In accordance with the presumption of innocence upheld
by the “innocent until proven guilty” legal standard, “anticipatory bail” is the duty to
release “an accused person on bail” pending the outcome of an investigation into
allegations of wrongdoing. Anticipatory bail is a powerful tool for protecting individual
freedom.

In a recent case of Sangeeta Bhatia v. State of NCT of Delhi171, the Delhi High
Court ruled that “anticipatory bail has its roots in Article 21 of the Indian Constitution
and that Section 438 of the Criminal Procedure Code establishes it as a statutory
right.”

In Tarun Jain v. Directorate General of GST Intelligence DGGI172, the

Delhi High Court determined that “anticipatory bail is a statutory right under Article
21 right to life and personal liberty.”

The Apex Court ruled in Rahna Jalal v. State of Kerla173, that “anticipatory
bail for an offense committed under the Muslim Women (Protection of Rights on
Marriage) Act 2019, can be granted with only one condition that the court hearing the
matter has heard the complainant’s side himself.”In cases where a married Muslim
woman has filed a complaint alleging a violation of the Act, the court with jurisdiction
must first hear her case before deciding whether or not “to grant anticipatory bail.” The
court may, at its discretion, provide ad interim relief to the

171
Bail Appn No. 3067/2018, decided on 14.02.2022, in the Delhi High Court.
172
2021 (12) TMI 135.
173
2020 SCC OnLine SC 1061.

113
“accused while the anticipatory bail” motion is pending, after having served notice on
the married Muslim woman.

In BhadreshBipinbhaiSheth v. State of Gujarat &Anr.174, the SC held that

“Section 438 of Cr.P.C. addresses the issue of anticipatory bail, which is based on
Article 21 of the Constitution, which deals with personal liberty. Thus, in light of Article
21 of the Constitution, a broad interpretation of Section 438 of the Code is required.”

In Gurbaksh Singh Sibbia&Ors. v. State of Punjab 175, the Hon’ble Supreme

Court ruled that “the legality of Section 438 must be assessed by the standard of
fairness, which is inherent in Article 21.”

Ismail Ali Seikh, the petitioner, has sought pre-arrest bail through a bail
application filed in accordance with Section 438 of the Criminal Procedure Code. The
filing of a First Information Report (FIR) is not necessary for the arrest of an individual
for a non-bailable offence under Section 438 of the Criminal Procedure Code, as
established by the Supreme Court’s ruling in Gurbaksh Singh Sibbia (supra). The
physical world must provide a reasonable foundation for belief. The applicant’s claim
that “he only fears that someone is going to lodge an accusation against him pursuant
to which he may be arrested” is insufficient to support his claim of belief in anything.
The grounds upon which the applicant’s belief can be objectively examined is necessary
for the Court to determine if he has probable cause to believe that he may be thus
arrested. It is not possible to use Section 438(1) Cr.P.C. based on general and vague
accusations to guarantee eternal freedom from arrest. The petitioner in this case makes
vague allegations that the police investigated his residence while he was away and told
him that a non-bailable section case had been brought against him. The accused is
allegedly afraid for his or her safety, although the nature of the crime is not specified.

When someone fears arrest and goes to court to request anticipatory bail, they
must provide detailed details about the crime they believe they will be charged with.
In order “to apply for anticipatory bail, the applicant must detail” their side of the

174
2016 SCC (1) 152.
175
(1980) 2 SCC 655.

114
story and the bare bones facts of the offence. The Court will use these to determine
whether or not a protective order should be issued, as well as the nature, extent, and
reasonableness of any associated risks.

The Court will not conduct a roving inquiry to determine whether or not a case
has been or will be filed against the petitioner, whether or not the petitioner is an
accused party in the case, or whether or not the petitioner is probable to be arrested.
Furthermore, there is no interrogation of universal protection under anticipatory bail
without understanding the case or its nature.

The Allahabad High Court ruled in the substance of Ankit Bharti v. State of
Uttar Pradesh 176 , that “although the High Court and Court of Session have concurrent
competence, it is customary to make an initial application to the Court of Session and
then appeal to the High Court if that application is dismissed.” If the applicant’s case is
well-reasoned and convincing, they can bypass the lower courts and go straight to the
High Court.

The higest court declared in Sushila Aggarwal v. State of NCT of Delhi177,

“anticipatory bail” might continue until the conclusion of the trial and that no time limit
may be put when granting it.

In Chandubhai Fakirbhai Patel v. State of Gujarat178, the investigating

agency is free to ask the competent Magistrate for police remand of the applicants if
they feel it is necessary and the learned Magistrate will make a decision based on the
assets of the case. On the date set for the initial hearing of such application, and on any
future dates set by the learned Magistrate, the applicants must be present. For purposes
of the prosecution’s application for police remand, this would be sufficientto treat the
accused as being in judicial custody. This, however, does not preclude the accused from
later requesting a stay against a remand order, which the learned Magistrate would be
within his or her authority to consider under applicable law. In the event that the
applicants are remanded to police custody, it is clarified that they will be immediately
released upon the conclusion of their remand period, subject tothe other requirements
of this anticipatory bail decision.

176
2020 LawSuit (All) 384.
177
2020 (5) SCC 1.
178
2022 LiveLaw (Guj) 387.

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 This court’s preliminary findings will not affect the trial court’s decision to grant
the petitioner bail. We now have the previously specified level of ultimate domination.
Shipping can be arranged straightaway.

The Supreme Court declared in Subrata Roy Sahara v. Pramod Kumar

Saini179 , that questions in “anticipatory bail applications” can only be about the
applicant and their circumstances. In “Order 1 Rule 10 of the Code of Civil Procedure
of 1908”, it cannot be impleaded against non-parties.

In the case of Shree Vikas Co. Op. Bank Ltd. v. State of Gujarat180, a bench
of the Gujarat High Court provided an illustrative and not exhaustive summary of the
law governing the revocation of “anticipatory bail”. It has been decided by the Court
that bail might be revoked if-

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

2. Hampers the process of the investigation.

3. Attempts to interlope with evidence or witnesses.

4. Threatens witnesses or engages in similar activities that would impede a

smooth investigation.

5. There is a risk of him fleeing to another country.

6. Attempts to make himself scarce.”

The Gujarat High Court held in the case of Mansi Jimit Sanghavi v. State of
Gujarat181, that an individual who is about to be arrested has the option to request
“transit anticipatory bail” in order to purchase themselves some time until they may be
brought before the relevant court with territorial jurisdiction over the matter. There
needs to be no FIR for this to be accurate.

In Manish Yadav v. State of Uttar Pradesh182, the Allahabad High Court

declared that an anticipatory bail plea can be submitted even “if a proclamation under
Sections 82 and Section 83 of the Code of Criminal Procedure, 1973” has already
been issued against the accused.
179
2022 LiveLaw (SC) 601.
180
2022 LiveLaw (Guj) 123
181
Cri. Misc. App. No. 13550 of 2022, decided on 03.08.2022, in the Gujarat High Court.
182
Cri Misc. App. No. 4645 of 2022, decided on 14.07.2022

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 In the case of DeenMohd. v. State of Haryana183, the Punjab and Haryana High
Court ruled that it is settled law that when a process is “ex debitojustitiae,” Latinfor “by
reason of an obligation of justice,” a court can deny an anticipatory bail on the mere
allegation that the defendant tried to mislead the court by concealing relevant
information.

The Kerala High Court ruled in “Vijay Babu v. State of Kerala &Anr.”184,an
accused person could apply for “anticipatory bail” even if he or she was physically
located in another nation.

Rohit Bishnoi v. State of Rajasthan185, case they had threatened to kill the
deceased. The deceased was said to have been shot by the accused after being dragged
from the market. The challenged orders originated when the accused filed bail
applications with the High Court and were subsequently granted bail. Consequently,
the appellant herein prefers the current appeals. The Court cited several precedents
holding that an order granting bail automatically, without recording reasons, would be
subject to “the vice of non-application of mind” and thus be invalid.

The Court also cited Manoj Kumar Khokhar v. State of Rajasthan, in which
it was determined that “an order granting bail to an accused is subject to being set aside
by the Court in the exercise of its power under Article 136 of the Constitution of India
if it was passed in a casual and cryptic manner, de hors reasoning which would validate
the grant of bail.”

Further, the Court referred to the Latin maxim “cessant eratione legis cessat
ipsalex” which means “reason is the soul of the law, and when the reason of any
particular law ceases, so does the law itself.”

When deciding to release the defendant on bail, the Court reviewed the section
of the appealed order that explained the High Court’s decision. When the trial is in its
early stages and the allegations against the accused have not been crystallized as such,
the Court said it is not necessary for a Court to assign elaborate reasons or engage in a
roving inquiry as to the merits of the prosecution’s case while granting bail. It was

183
CRM-M-26229-2022, decided on 10.06.2022, in the High Court of Punjab and Haryana
184
Bail Appl. No. 3475 of 2022, decided on 17.06.2022, in the Kerala High Court.
185
2023 SCC OnLine SC 870.
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also mentioned that the Courts cannot completely divorce their decision from material
aspects of the case such as “the nature of the allegations against the accused”, the
severity of the punishment if the allegations are proven beyond reasonable doubt, the
likelihood that witnesses will be influenced by the accused, the possibility of evidence
tampering, the accused’s criminal history, and the probability that accused will appear
at his or her arraignment. Although personal liberty is paramount, the Court determined
that the gravity of the charges against the accused and other pertinent factors must be
considered. This is especially true when the allegations are notnecessarily baseless,
frivolous, or vexatious, but are instead supported by sufficient evidence presented at
trial.

The Court added that when evaluating an accused person’s guilt or innocence
of the charges against them, the facts which are suggestive of the nature of crime, the
accused’s criminal antecedents (if any), and the nature of punishment that would follow
a conviction must all be taken into account. After reviewing the evidence and the
charges, the court determined that there was not enough evidence to conclude that the
allegations against the defendants were frivolous, vexatious, or completely groundless;
therefore, bail should be granted. Without commenting on the case’s merits, the court
concluded that the prosecution had presented sufficient evidence to suggest the
accused’s guilt at first glance. Based on this, the Court concluded that the High Court’s
decision to grant bail was an abuse of discretion because it relied solely on the
testimony of a single hostile witness at trial. The Supreme Court agreed withthe
appeals court that the High Court erred by granting bail to the defendants in cryptic
and careless orders that lacked sound reasoning. The Court agreed with the appellants
and reversed the High Court’s decision to release the defendants on bail. The defendants
have been given two weeks from the date of the order to turn themselves in to the jail
authorities.

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 CHAPTER–V

CONCLUSION AND SUGGESTIONS

Once a conference, seminar, meeting or arguments of the case are finished,

then the outcome of these is made, which in ordinary language means “conclusion.”
In the same way in a research project the outcome of such result is discussed in the
heading of “conclusion” of such result. Further, if the researcher has found any lacunas
or shortcomings in his/her researched topic, for removing, correcting, amending,
abridging and improving, suggestions have to be given. Thus, the object of this chapter
is to discuss and analyse, the conclusion and suggestions of the researched topic of
his/her research project.

It will be relevant here to mention the observations of Justice Dalveer

Bhandari on this issue in the following words, “Society has a vital interest in grant
or refusal of bail because every criminal offence is an offence against the state. The
order granting or refusing bail must reflect perfect balance between the conflicting
interests, namely, sanctity of individual liberty and the interest of the society”.186

It can also be said in this regard that this Indian law was enacted to shield
citizens from the stigma of being hauled into court on trumped-up allegations and to
safeguard government employees from corruption facilitated by the misuse of the
criminal justice system. An essential improvement for individual freedoms. In this
philosophical discussion, the meaning of bail serves as a focal point. However, once
anticipatory bail is in place, issues arise regarding “who is eligible for anticipatory
bail, what crimes are covered by the grant of release, and whether or not a court has
the authority to hear an anticipatory bail request.” The courts in India have elaborated
on the answers to these questions. However, the benefits of anticipatory bail are
outweighed by the significant time and complexity that must be spent in court. This
Indian innovation’s potential for export hinges on how frequently political, economic,
or legal systems are manipulated by the threat of arrest and incarceration.

186
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.

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 In our political and social structure, freedom is held in the highest regard.
The men who wrote our Constitution understood the worth of individual freedom
more than anybody else. “Article 21 of the Constitution” guarantees that “no citizen
shall be deprived of life, liberty, or property without due process of law”. Therefore,
a person’s freedom can be restricted according to the rules set forth in the law. Such
procedural laws include, for example, “the Code of Criminal Procedure, 1973”. After
considering the facts presented in a criminal case, the court must decidewhether
or not to release the prisoner on bond. This decision must be made in non- bailable
cases, and consideration must be given to a wide range of factors including the nature
of the crime, the circumstances surrounding its commission, the accused’shistory, the
likelihood of his jumping bail, the effect his release may have on prosecution
witnesses, the potential for retribution, etc.

Verification Hypothesis:

The hypothesis which the researcher has undertaken in the beginning, have the
following result namely that “Judicial interpretation of Bail matters especiallythe
Anticipatory Bail matters has evolved the criminal law system and over the years it
has synthesised into a combination of legislative intent and judicial activism.”

Secondly, “Considering the condition of prisons and inmates therein in our

country, Anticipatory bail provisions do provide a way through for balancing the
line of personal liberty and societal interest.”

Therefore, the Indian Criminal Procedure Code, a person may apply for bail
in the event that they believe they would soon be arrested. An individual who has filed
a false or groundless case against them is protected from arrest by this provision.
Check out this breakdown of India’s anticipatory bail system:

1. Legal Provisions: Anticipatory bail is allowed in India under Section 438 of

Cr.P.C. When a person is expecting arrest for an offense that normally doesnot
allow bail, the court has the authority to grant bail.

2. Scope: Anticipatory bail is a pre-arrest legal remedy accessible to a person who

expects to be arrested for an offense that does not qualify for bail. The goal of
the measure is to calm the nerves of anyone who might be falsely accused and
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 hence dread detention.

3. Conditions: When granting anticipatory bail, the court has the discretion to
attach restrictions such as mandatory appearances before investigators and the
court, no unauthorized travel abroad, and no interference with evidence.

4. Time period: Anticipatory bail is only available for a short amount of time
before the defendant must reapply for ordinary bail.

5. Grounds for rejection: The court may deny anticipatory bail if the applicant
does not participate with the inquiry or if there is evidence to suggest that the
applicant may abscond or tamper with evidence.

6. Importance: Protecting persons from unlawful detention and harassment,

anticipatory bail in India is a crucial legal safeguard. It makes ensuring that
people’s basic rights are respected and that justice is administered without
bias.

7. Recent developments: The Supreme Court of India established rules for granting
anticipatory bail in 2018, requiring lower courts to consider factors such the
gravity of the allegations, the accused’s role in the crime, the likelihood that the
accused will attempt to evade justice, and the strength ofthe evidence against
them.

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 In India, anticipatory bail is an essential legal safeguard against baseless
prosecution. It’s crucial to ensuring that people’s basic rights are protected and that
justice is administered fairly.

A person is entitled to a bail hearing under section 438 of the CriminalProcedure

Code if they feel they might be arrested for a crime that does not meet the criteria for
bail. The release from custody prior to an arrest under certain conditions is known as
pretrial bail. Several factors are considered by the court when determining whether to
grant anticipatory bail, and the defendant may be subject to conditions imposed to
guarantee their cooperation with investigators.

Assuming they have not already been found guilty of the offence for which they
are requesting anticipatory bail under Section 438, individuals are entitled to a
presumption of innocence. Although the power to give anticipatory bail can be
considered “extraordinary,” the authorities should not require a “special case” to
exercise their discretion and grant bail.

Due to the fact that every case is different, there ought to be no universally
applicable law regarding anticipatory bail. Individual liberty should only be limited in
very exceptional circumstances, as it is a fundamental right of the utmost importance.

Pros of anticipatory:

Some of the main pros of anticipatory bail are as follows:

1. It provide protection against wrongful arrest:The right to anticipatory in

advance protects defendants from being arbitrarily detained. They can get bail
before they’re even arrested, and then, if they are taken into custody, they can
get out quickly.

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2. It mention preservation of personal liberty: Protecting the right to freedom is
aided by the practice of granting anticipatory bail. It makes sure that people
aren’t locked up for no reason, so they can go on living their lives normally
without the restrictions of incarceration.

3. It stops preventing harassment and humiliation: The potential harassment,

embarrassment, and social shame that may result from a false or unjustified
accusation might be avoided with the use of anticipatory bail. As such, it can be
used as a safeguard against the abuse of the judicial system

4. It acts as facilitating cooperation with investigation: Anticipatory bail allows

people to help authorities with their investigations without worrying about being
arrested right away. This lets people take part in the investigation and have their
say, ensuring a more balanced and complete process.

5. It results ensuring access to legal representation: Anticipatory bail guarantees

that defendants can retain counsel and fully state their case in court. They can
hire attorneys, collect evidence, and formulate a solid defense strategy in this
time.

6. Anticipatory bail is an important mechanism for maintaining justice and

safeguarding people’s rights.

7. This is yet another example of how India’s legal system adapts to meet the
changing demands of justice while also protecting the rights of those who have
been wrongly accused.

8. Anticipatory bail continues to be a crucial part of a just and equitable legal

system in India thanks to careful thinking and application.

9. It protect the individual from unnecessary harassment by the opponents.

10. It provides help in those cases where due to enmity, jealously, rivalry false
accusation and F.I.R. have been lodged.

11. It violates Article 21 of the Constitution, which guarantees the right to

freedom.

12. It prevent the abuse of legal proceeds.

13. It protect the person and his family reputation.

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14. It acts as a safeguard for protecting his/her character being tarnished.

15. It protect the social status of the person being maligned.

16. It help the poor, illiterate, and deprived persons from dragging them to courts
for the purpose of their exploitation.

17. It specially act as a personal body guard for the girls and women who refuse
sexual fair to influential persons.

18. It protect from being suffering from the complicated, dilatory, rigirous legal
process.

19. It protect the person from horrible and harrowing experience in jails and
prisons and police lock-up as well as of various kinds of exploitation.

20. Lastly, it is an important mechanism for maintaining justice and safeguarding

people’s rights.

Cons of anticipatory:

The darker side of the Anticipatory bail are as follows, namely-

1. It works as a potential misuse: The potential for anticipatory bail to be abused

is a major cause for concern. There is a possibility of individuals abusing the
provision in order to avoid judicial process or obstruct the investigation by
applying for anticipatory bail on flimsy or nonexistent grounds.

2. It creates hindrance to investigation: The investigation could be hampered if bail

is granted in advance. Even where there is a compelling need to apprehend the
accused in order to conduct a comprehensive and successful investigation, this
restriction can hamper law enforcement’s capacity to make arrests and collect
evidence.

3. It undermine deterrence: Some people think that the criminal justice system’s
deterrent effect is diminished when anticipatory bail is used. They worry that
if people know they can post bail before being arrested, they will be more likely
to do criminal acts.

4. It provide potential flight risk: It is possible that those who represent a flight
risk will avoid arrest and avoid due process if anticipatory bail is givenwithout
taking into account the chance that the person will flee from justice.

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9.4 Suggestions:

It would take careful study of several factors in the Indian judicial system if
“anticipatory bail” is to be improved. Several important measures can be taken to
strengthen this clause. Priority should be given to simplifying the application process,
making it easily accessible, and giving applicants clear instructions. Preventing
incorrect arrests and ensuring equitable treatment can also be aided by providing law
enforcement with regular training on the subtleties of anticipatory bail. A more efficient
system can also benefit from the introduction of a mechanism for the prompt review
and modification of bail terms. It is also important to increase public and judicial
understanding of the rights and processes involved in anticipatory bail. Finally, the
researcher has tried to put down the following few elaborated suggestions which may
be taken into consideration by legislature, executive and judiciary while dealing with
this issue by them:

(1) The Code has bail provisions, however these may not be sufficient to
guarantee that the bail system actually works as intended. Legislative,
executive, and judicial authorities are necessary for the effective
administration of criminal justice, and there should be a deliberate effort to
win public support and participation in this arena. This alone will go a long
way towards restoring normalcy to the bail system. There must be immediate
focus on the following:
(a) Integrity in the workings of the police force,
(b) Creating Instruments to Regulate Law Enforcement,
(c) Speedy and fair trial for the accused, and
(d) Access to legal counsel and representation from pre-trial through
sentencing in criminal cases.

(2) In order to put the current bail law into effect, a new, comprehensive code
would need to be enacted. The proposed code should incorporate the
underlying principles, practicality, and guidelines for granting and denying
bail. Human rights jurisprudence has evolved to the point that it requires
exclusive provisions for dealing with instances involving juveniles, the
mentally ill, and people imprisoned for preventative purposes.

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(3) The current statutory bail mechanism has to be made more transparent and
thorough. Reforming bail law is necessary, thus the current ambiguity and
incoherence must be replaced.

(4) Poverty is at the heart of most crimes, so there should be concerted efforts to
lift people out of it and to provide access to education. There would be fewer
conflicts and subsequently fewer people waiting in jail for trial if this issue
could be resolved.

(5) More courts are needed, and open judicial positions must be filled without
delay. The current number of courts is insufficient to handle the backlog of
cases. Cases become stuck in limbo because of its insufficiency. In addition,
there is a judgeship that is now unfilled.

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 BIBLIOGRAPHY
Books:

1. Narayan Laxmanrao, Anticipatory Bail Law & Practice, Asia Law House,
Hyderabad, 2017.

2. National Crime Records Bureau, Prisons Statistics, Ministry of Home Affairs,

21st Edn., 2015.

3. P. Venkalesh, Law of Bails, Premier Publishing Company, 2008.

4. P.K. Majumdar, R.P. Kataria, Law of Bails Bonds & Arrest, Orient Publishing
Company, New Delhi, 3rd Edn., 2011.

5. P.V. Ramakrishna, Law of Bails, Universal Law Publishing. Ninth Edition,

2016.

6. Paul Leicester Ford, ed., The Writings of Thomas Jefferson, G. P. Putnam’s

Sons, New York, 1892.R.K. Gupta and Dr. M.K. Chaubey, Law on Anticipatory
Bail, LexMan, 1st Edn.,2022.

7. Rajesh Srivastava and Vinay B. Kadam, Bail is Rule, Sushma Law Publication,
2013.

8. Salman Khurshid, Sidharth Luthra, Lokendra Malik, and Shruti Bedi, Taking
Bail Seriously: The State of Bail Jurisprudence in India, Published by
LexisNexis, Gurugram, 2020.

9. Surendra Malik & Sudeep Malik, Supreme Court on Bail, Anticipatory Bail and
Quashment, EBC, 2020.
Articles:

1. Caleb Foote, “The Coming Constitutional Crisis in Bail”, 113 U. PA Law

Review. 1125, 1180 (1965).

2. Condition for Anticipatory Bail in India, Tripaksha Litigation, August 19, 2023.

3. F.E. Devine, “Anticipatory Bail: An Indian Civil Liberties Innovation”,

International Journal of Comparative and Applied Criminal Justice, Volume 14,
1990

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4. K. Rajeev Reddy, “Anticipatory Bail: Critical Analysis”, on March 28,
2021Police powers: pre-charge bail, Government consultation, issued 5
February2020, Annex A).

5. Priyanka Purohit, “Explained: Anticipatory Bail and Judicial Interpretation

Section 438 of the Code of Criminal Procedure 1973”, on 1st Oct., 2021

6. Pushkraj Deshpande, “India: Anticipatory Bail and Its Laws”, on 15th Sept.,
2020.

7. Research paper on “Transit Anticipatory Bail”, A.K. Legal & Associates,

December, 8, 2021.

8. Shivanshu Goswami, “Analysis of the legal aspects of anticipatory bail: Law

and reality”, August 6, 2020.

9. Shivi, “Meaning, Concept and Types of Bail in India”, on July 4, 2018.

10. Tarini Kalra, “Anticipatory Bail”, September 26, 2022.

11. Two die of Covid-19 at Tihar jail; prison reports 261 active cases, Hindustan
Times on April, 29, 2021.

12. Woman inmate in Tihar jail dies of COVID-19, The Hindu on May 6, 2021.

Acts and Reports:

➢ The Code of Criminal Procedure (Amendment) Act, 2005.

➢ The Code of Criminal Procedure, 1898.

➢ The Constitution of India, 1950

➢ The Criminal Procedure Code, 1973

➢ The Juvenile Justice (Care and Protection of Children) Act, 2015.

➢ 268th Report of Law Commission of India, 2017.

➢ 41st Report of Law Commission of India, 1969.

➢ 48th Report of Law Commission of India, 1972.

• Government of Gujarat, Report of the Legal Aid Committee 1971.

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