LEGAL ANALYSIS OF THE PROVISION OF

ANTICIPATORY BAIL UNDER SECTION 438 OF

CrPC

A CRIMINAL PROCEDURE CODE- I PROJECT

SYNOPSIS SUBMISSION

SUBMITTED BY:
NISHEETH AGRAWAL
ROLL NO.: A005
SY BBA LLB (HONS)
BATCH: 2015-2020
TRIMESTER VI
SUBMITTED TO:
PROF. SHRIKANT AITHAL
DATE: 10/04/2017
 INTRODUCTION

The Code of Criminal Procedure (CrPC ) is the main legislation on procedure for
administration of substantive criminal law in India. It was enacted in 1973 and came into
force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension
of suspected criminals, collection of evidence, determination of guilt or innocence of the
accused person and the determination of punishment of the guilty. Additionally, it also deals
with public nuisance, prevention of offences and maintenance of wife, child and parents.

At present, the Act contains 484 Sections, 2 Schedules and 56 Forms. The Sections are
divided into 37 Chapters.

Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the
Criminal Procedure Code. Law Commission of India in its 41st report recommended to
incorporate this provision in procedure code. This provision allows a person to seek bail in
anticipation of an arrest on accusation of having committed a non-bailable offence. On filing
anticipatory bail, the opposing party is notified about the bail application and the opposition
can then contest the bail application in court (public prosecutor can also be used to do this).

LIST OF CASES

(1) Gurbaksh Singh Sibbia v. State of Punjab (1980 AIR 1632)

(2) Sunil Fulchand v. Union of India (1989 AIR 1529)

(3) Balchand Jain Vs. State of M.P (1977 AIR 366)

(4) Siddharam Satlingappa Mhetre V. State of Maharashtra {(2011) 1 SCC 694}

(5) Savitri Agarwal Vs. State of Maharashtra ((2009) 8 SCC 325)

 OBJECTIVE

The objective of this research project is to know-

1. The necessity for granting anticipatory bail;

2. Discretionary powers and competency of courts and to grant anticipatory bail;
3. And analyse other provisions of the same section.

REVIEW OF LITERATURE

The researcher while in the making of this project will go through various books, various
articles and journals, various e-resources to acquire the required information for the
successful completion of this research project. Some of them are listed below:-

R.V KELKAR, LECTURES ON CRIMINAL PROCEDURE INCLUDING

PROBATION AND JUVENILE JUSTICE (Eastern Book Company 2015)
BARE ACT: CODE OF CRIMINAL PROCEDURE, 1973

METHODOLOGY

There are two kinds of data- primary and secondary data. Data which is collected for the first
time by an investigator to suit the purpose of his research is called primary data and the data
collected by somebody else to suit some other purpose which may be used by the researcher
is called secondary data.

This is pure research essentially for academic purposes. A larger part of the paper is
secondary research based. As the Judiciary has been active in interpreting the same in case to
case basis, a major source of data is the Judgements. Besides these, papers by people whove
similar research have been referred to. Comments on the judicial decisions have been cited
from published books.

RESEARCH QUESTIONS

1. What principles are to be followed by Courts while granting/ rejecting Anticipatory

Bails?

RESEARCH HYPOTHESIS

The section 438 of CrPC is a misnomer or in other words the term used anticipatory bail is
inaccurate and wrong.

TENTATIVE CHAPTERIZATION
Introduction
Research Methodology
Legal Analysis Study of Relevant Legal Framework
Role Of the Judiciary Judicial Activism and framing important declarations.
Conclusion and Suggestions