DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE – PROVISION OF ANTICIPATORY BAIL UNDER SPECIAL

ENACTMENTS: A BOON OR BANE
SUBJECT: THE CODE OF CRIMINAL PROCEDURE, 1973

NAME OF THE FACULTY: ASST. PROF. SOMA B.

NAME OF THE STUDENT: SANSKAR JAIN

ROLL NO. 2018080

SEM 4
ACKNOWLEDGEMENT

I  would like to express my special thanks of gratitude to my teacher who gave me the golden
opportunity to do this wonderful project on the topic which also helped me in doing a lot of
research and I came to know about so many new things I am thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.
 CHAPTERISATION

1. SYNOPSIS
2. INTRODUCTION
3. OBJECTIVE AND CONDITIONS FOR GRANTING OF ANTICIPATORY
BAIL
4. GRANT OF ANTICIPATORY BAIL UNDER SPECIAL ENANCTMENTS

4.1 UNDER SCHEDULED CASTES AND SCHEDULED TRIBES

(PREVENTION OF ATROCITIES) ACT, 1989

4.2 UNDER PMLA ACT

4.3 OTHER SPECIAL ENACTMENTS
5. PRE-TRIAL INCARCERATION NEEDS JUSTIFICATION DEPENDING
UPON NATURE AND TERM OF OFFENCE

6. NOT GRANTING ANTICIPATORY BAIL MAY CAUSE VIOLATION OF

FUNDAMENTAL RIGHTS OF AN INDIVIDUAL UNDER ARTICLE 21 OF
THE CONSTITUTION OF INDIA

7. RIGHTS OF FIRST INFORMANT TO INTERVENE IN ANTICIPATORY

BAIL APPLICATION

8. CONCLUSION

SYNOPSIS
PROJECT TITLE: PROVISIONS OF ANTICIPATORY BAIL UNDER SPECIAL
ENACTMENTS: A BOON OR BANE
INTRODUCTION;

Section 438 of Cr.P.C. deals with anticipatory bail. The anticipatory bail is nothing but a bail
in the event of arrest, when any person has an apprehension or reason to believe that he may
be arrested of an accusation of having committed a non-bailable offence then he may apply to
High Court or Court of Sessions for direction that in the event of arrest he shall be released
on bail. Therefore, the said powers are exclusively vested with the Court of Sessions and
High Courts. For considering the application for anticipatory bail the prerequisite condition is
that the offence must be non-bailable. There must be a sufficient reason to believe that the
applicant may be arrested in said accusation. The Sessions Court or the Hon'ble High Court
considering the nature and gravity of accusation, the antecedent of applicant, the possibility
to flee from justice and whether the accusation has been made with object of injury or
humiliating the applicant by having him arrested may either reject the application or issue an
interim order for the grant of anticipatory bail. When the respective court has not passed any
interim order or has rejected the application then the officer-in-charge of police station has
right to arrest the accused without warrant. The interim order along with the seven days’
notice must be served to the Public Prosecutor and Superintendent of Police with a view to
give them an opportunity for hearing on the application. The presence of applicant seeking
anticipatory bail shall be obligatory at the time of final hearing of application and passing
final order by the Court. But the Public Prosecutor must have to apply for the same. In
applying these conditions to specific situations the court may find it convenient to take into
consideration factors like, gravity of the offence, nature of the accusation, character and
antecedents of the petitioner as well as some such other clichés as are generally found in the
judicial store-house and are so often relied upon. It may be said that search for guidelines
may oblige the court even to fall back upon considerations indicated under section 437 of the
Code, which provide for grant of bail in non-bailable cases, although proceedings under
section 438 for the direction of anticipatory bail are to be invoked during the pendency of
investigation and not after it.

RESEARCH QUESTIONS;
 1. Whether refusal to grant anticipatory bail may cause violation of fundamental rights
of an individual under Article 21 of the constitution of India.

2. Whether special enactments should include specific provisions related to anticipatory

bail to balance the rights of an accused as well.

THE OBJECTIVE OF THE STUDY;

1. To understand the dilemma surrounding exclusion of provisions of anticipatory bail in

different special enactments.
2. To understand the prejudices that such exclusion cause to the rights of an accused.
3. To understand how the refusal to grant anticipatory bail may cause violation of
fundamental rights of an accused under Article 21.

SCOPE;

The scope of this study is restricted to application of the anticipatory bail provisions in the
matters arising in special enactments.

RESEARCH METHODOLOGY;

The research is adopting doctrinal study for this project involves the analytical and
descriptive study of primary sources of data especially the provisions speaking of anticipatory
bail under various special enactments.

SOURCES OF RESEARCH:

Primary Sources: Bare Act Cr.P.C, 1973.

Secondary Source: Books, Articles, Online resources.

LITERATURE REVIEW

1. BAIL UNDER SPECIAL LEGISLATION, SHYAM D. NANDAN & DEEPA

KANSRA, PUBLICATION OF THE INDIAN LAW INSTITUTE, 2019.

This paper examines different special legislations that do not borrow the concept of
Anticipatory bail from the criminal procedure code and set their own procedures for
obtaining bail at different stages. It also argues on the lines that since heinous and grave
offences are covered under special legislations, provisions of anticipatory bail must be
restricted and should not be applied to such enactments. The author also points at requirement
of making the accused to prove his innocence since charges levelled against him are severe in
nature and the onus should be on him to disprove his culpability.

2. ANTICIPATORY BAIL LAW IN INDIA, AMIT SORIN, SSRN ELECTRONIC

JOURNAL, 2009.

This paper examines the necessity to include provisions of anticipatory bail in special
enactments by saying that In spite of the given reservations about the anticipatory bail. There
exists another stream of thought. According to which it can be safely observed that the
anticipatory bail mechanism is a necessity. Without it numberless persons may be made to
suffer in custody just on account of some suspicion or a false charge. Also the experiences of
courts in evolving useful precedent in matters of anticipatory bail must not be undervalued.
This paper also point out the problems as well. It says that since the concept of anticipatory
bail is intended to be fallout of the value of personal liberty, an added consequence would be
to push the co-equal value of security and stability to the side-lines. The provision is thus
legal anomaly in relation to the established legal concept of bail. It is a provision more
readily available to the affluent but it is definitely prejudicial to the interests of the
administration of the bail process in the administration of criminal justice system
INTRODUCTION

The word “Anticipatory Bail” is not found in s. 438 or in its marginal note. In fact
“anticipatory bail” is a misnomer as it is not bail presently granted in anticipation of arrest
.When the Court grants anticipatory bail, what it does is to make an order that in the event of
arrest, a person shall be released on bail. Manifestly there is no question of release on bail
unless a person is arrested, and therefore, it is only on arrest that the order granting
“Anticipatory Bail” becomes operative. The Section, however, makes no distinction whether
the arrest is apprehended at the hands of the police or at the instance of the magistrate. The
issuance of warrant by the magistrate against a person justifiably gives right to such an
apprehension and well entitled a person to make a prayer for anticipatory bail. Issuance of
summons for appearance also entitled an accused to apply for anticipatory bail. 1

It has also been held that anticipatory bail cannot be granted to a person to do something
which is likely to be interpreted as commission of crime even if the offender intended it as
something in exercise of his rights.2 The expression ‘anticipatory bail’ is a convenient mode
of conveying that it is possible to apply for bail in anticipation of arrest. 3 The distinction
between an ordering order of bail and an order of anticipatory bail is that whereas the former
is granted after arrest and, therefore, means release from the custody of the police, the latter is
granted in anticipation of arrest and is, therefore, effective at the very moment of arrest.

Sec 438 makes a provision enabling the Superior Court to grant anticipatory bail e.g. A
direction to release a person on bail even before a person is arrested.

The Law Commission considered the need for such a provision and observed:
“The necessity for granting anticipatory bails arises mainly because sometimes influential
persons try to implicate theirs rivals in the false cases for the purposes of disgracing them or
for other purposes by getting them detained in jails for some days. In recent times, with the

1
P.V Narsinha Rao v. Delhi Admi., (1997) Criminal Law Journal 961 Delhi (India).
2
Thayyanbadi Mithal Kunshiraman v. Supretendent of Police, (1985) Criminal law Journal 1 Ker (India).
3
Padma Charan Panda v. Ram Mohan Rao, (1987) Criminal Law Journal 923 (India).
accentuation of political rivalry this tendency is showing signs of steady increase. Apart from
false cases, where there are reasonable grounds for holding that persons accused of an
offences is not likely to abscond or otherwise misuse his liberty while on bail , there seems no
justification to require him first to submit to custody, remain in prison for some days and then
apply for bail.4

In its subsequent report the Law Commission expressed the view that the power to grant
anticipatory bail should be exercise in very exceptional case .The Commission further
observed:
“In order to ensure that the provisions is not put to abuse at the instance of unscrupulous
petitioners ,the final order should be made only after notice to the public prosecutor . The
initial order should only be an interim one. Further, the relevant section should make it clear
that the direction can be issue only for reasons to be recorded, and if the court is ratified that
such a direction is necessary in the interest of justice”5

OBJECTIVE AND CONDITIONS FOR GRANTING OF ANTICIPATORY BAIL

The purpose underlying section 438 of the code is to ensure that a person anticipating arrest is
not obliged to go to jail till he is able to move the court for being released on bail. But it
cannot also be construed that such a direction should be allowed to come in the way of police
investigations nor should it seek to circumscribe police powers relating to remand to police
custody for purposes of facilitating investigation. Accordingly, in Samabhai v, State of
Gujarat6 the court observed that a direction for anticipatory bail would not be allowed to
come in the way of a fuller consideration of the question of custody of the person when the
investigations are incomplete. The court further said: The order may, therefore, provide that it
will exhaust itself on or will remain operative only till the expiry of ten days from the date of
the arrest and the accused will have to obtain a fresh order in usual course.... To avoid
compactions, instead of unlimited duration the order may provide that it will become
inoperative if no arrest is made say within 90 days of the order. 7 A search for factors guiding
the issue of directions for anticipatory bail is continuous. Some conditions are already
incorporated in clause (2) of section 438 of the Code of Criminal Procedure, 1973. In

4
48th Report of the Law Commission p10 para 31.
5
Ibid.
6
(1977) Cr.LJ 1524 Guj (India).
7
Ibid.
applying these conditions to specific situations the court may find it convenient to take into
consideration factors like, gravity of the offence, nature of the accusation, character and
antecedents of the petitioner as well as some such other clichés as are generally found in the
judicial store-bouse and are so often relied upon. It may be said that search for guidelines
may oblige the court even to fall back upon considerations indicated under section 437 of the
Code, which provide for grant of bail in non-bailable cases, although proceedings under
section 438 for the direction of anticipatory bail are to be invoked during the pendency of
investigation and not after it.

GRANT OF ANTICIPATORY BAIL UNDER SPECIAL ENANCTMENTS

Apart from the Indian Penal Code, there are special legislations passed by the Parliament of
India to deal with particular offences. Most of those legislations, like the Food Adulteration
Act, 1954 (repealed), the Dowry (Prohibition) Act, 1961, the Narcotics Drugs and
Psychotropic Substancses Act, 1985 etc. borrow the procedural mechanism provided in the
Code of Criminal Procedure (hereinafter referred to as ‘Code’) including the bail provisions
therein. However, with the increase in complexity of crimes in the last four decades there has
been a lot of pressure on the State to enact laws which can deal with these complexities. The
substantive provisions of the Indian Penal Code as well as the procedures provided under the
Code were evidently found wanting in many respects. Thus came into existence certain
special legislations which created new offences and provided for different procedures to be
followed to try those offences. These procedures were more stringent and they even tugged at
the time tested principles of procedural fairness and human rights. As far as the bail
provisions are concerned, it has been said in the earlier chapters that the Code has always
viewed bail as a right of the accused, to be denied only in exceptional circumstances. There
was one viewpoint that this outlook was becoming a hindrance to investigation and
prosecution of crimes.

It has been seen that most special Acts rely on the provisions of the Code i.e. section 438,
when it comes to granting pre-arrest/anticipatory bail. The NDPS Act, the PML Act etc are
typical examples. The question that arose before the three judge bench of the Calcutta high
court in Teru Majhi v. State of W.B8 was whether the special court constituted under the Act
would have the power to grant pre-arrest bail under Section 438 of the Code. Although there
was no difference of opinion regarding the entitlement of an accused under the Act to be
8
(2014) SCC Online Cal 7684 (India).
granted pre-arrest bail, the view of the prosecution was that such a power only vested in the
high court. This view was based on the contention that the special court under the Act was
merely deemed to be a sessions court for the purposes of trial of offences under the Act and
being a court of first production, it did not have the power to grant pre arrest bail under the
Act. The high court held that the special court was not the court of first production and after
interpreting the provisions of section 36 C of the Act, it came to the conclusion that no
provision of the Code was excluded for the purposes of the said section unless there was a
specific exclusion in the Act. Not finding such an express exclusion anywhere in the statute,
it held that the special court under the NDPS Act could grant pre-arrest/anticipatory bail as
per section 438 of the Code.

UNDER SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF

ATROCITIES) ACT, 1989

A judgment by the Supreme Court is binding law. Article 141 9 of the Constitution states that
the law declared by the Court is binding on all courts in India. Ordinarily, when a judgment
of the Supreme Court is delivered on any important question of law, it is extensively reported
by the media. However, we have to be vigilant about incomplete or inaccurate reports. This is
what happened in a landmark judgment delivered by the Supreme Court on the bar of
anticipatory bail in case of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The uncertainty continues even today about whether pre-arrest bail is
barred under the SC/ST Act.

The Act barred the grant of anticipatory bail in Section 1810. But the Supreme Court of India
in Dr Subhash Kashinath Mahajan v. State of Maharashtra11 declared that there was no bar
on grant of anticipatory bail under the SC/ST Act, 1989, provided no prima facie case was
made out. In addition, the Court passed guidelines mandating “preliminary inquiry” before
registration of an FIR by a DSP-rank officer, approval by a sanctioning authority in cases
related to public servants and by an SSP in other cases, before an arrest is made.

The law in the Kashinath case led to massive protests nationwide among Scheduled Castes
and Scheduled Tribes. In April 2018, a review petition was filed by the Union challenging the
directions issued in the judgment. An important concession given by the Union of India in its
9
Article 141, The Constitution of India, 1949.
10
Section 18, Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
11
(2018) 1 UC 479 (India).
review petition was that the review was confined only to the direction issued from items (iii)
to (v) of the main judgment. This essentially called into question only the necessity of a
preliminary inquiry and prior permission mandated before the arrest. As a result, it becomes
evident that the part related to “no absolute bar” on the grant of anticipatory bail in the
concluding para (ii) of the main judgment was not criticised at all.

In the meantime, an amendment was inserted in Section 18 (A) to nullify the effect of the
main judgment. Section 18 reinstated the previous position, making Section 438, CrPC, not
applicable and 18 (A) declared that no inquiry or approval was required. Even so, this portion
of the amendment was challenged through a writ petition in Prithvi Raj Chauhan vs UOI12 in
the Supreme Court in August 2018. The petitioners questioned the insertion in Section 18 (A)
in the Act. Later, this petition was clubbed with the review petition of the Union on January
25, 2019.

Finally, the Supreme Court in a review on October 1, 2019, decided the case, restricting it
with respect to the directions challenged by the Union in their petition. This clearly did not
include the challenge to a part of the main judgment which ruled that “there is no absolute bar
on grant of anticipatory bail”. The Bench examined every aspect in detail, including the
doctrine of separation of powers. It was held in Para 54 of the case that “the guidelines in (iii)
and (iv) appear to have been issued in view of the provisions contained in Section 18 of the
Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation
by this Court in the case of State of M.P. v R.K. Balothia.13 The consistent view of this Court
that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989,
in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted.
Thus, misuse of the provisions of the Act is intended to be taken care of by the decision
above”.

Further, the concluding Para declared: “We do not doubt that directions encroach upon the
field reserved for the legislature and against the concept of protective discrimination in
favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible
within the parameters laid down by this Court for exercise of powers under Article 142 of the
Constitution of India. Resultantly, we are of the considered opinion that direction Nos. (iii)

12
WP (C) 1015/2018 (India).
13
AIR 1994 MP 143 (India).
And (iii) issued by this Court deserve to be and are hereby recalled and consequently we hold
that direction No. (v) also vanishes. The review petitions are allowed to the extent mentioned
above.

From the above narration, it can be safely concluded that the only directions which were
assailed before the Court were the ones dealing with the mandate of preliminary inquiry and
prior permission for arrest and thus, the Court decided only those issues keeping the essence
of the Kashinath judgment intact.

This further gets endorsed from the conclusions arrived at by the Bench in the writ petition
which assailed the amended Section 18 (A) of the Act. The writ petition was decided on
February 1, 2020. Two separate concurring judgments were given by the Bench consisting of
Justices Arun Mishra and J Vineet Saran and another by Justice S Ravindra Bhat. In so far as
grant of anticipatory bail is concerned, Justice Mishra held in the concluding para that
“concerning the applicability of provisions of Section 438 Cr. PC, it shall not apply to the
cases under Act of 1989. However, if the complaint does not make out a prima facie case for
applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A (i)
shall not apply. We have clarified this aspect while deciding the review petitions”.

Justice Bhat, while agreeing with the majority judgment, said in his separate opinion: “I am
in agreement with the judgment proposed by Justice Arun Mishra as well as its conclusions
that the challenge to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
(Amendment) Act, 2018 must fail, with the qualifications proposed in the judgment with
respect to the inherent power of the court in granting anticipatory bail in cases where prima
facie an offence is not made out.”

And further in para 19 of the judgment, he said: “As far as the provision of Section 18A and
anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no
prima facie materials exist warranting arrest in a complaint, the court has the inherent power
to direct a pre-arrest bail.”

A combined reading of these two judgments makes it clear that there is no bar on grant of
anticipatory bail under the Act in appropriate cases. Where no prima facie case is made out,
the courts will be well within their powers to grant pre-arrest bail, though the nomenclature
may vary. However, after the passage of the review judgment, there were misconceptions that
bail is not permissible in appeals under the Act or when the provisions of the SC/ST Act are
applicable. Various precedents have shown that bail is denied in many cases by High Courts
on the premise that the Act bars it, coupled with misinterpretation of the judgment. Courts are
well within their powers to grant pre-arrest bail in appropriate cases, including in cases of
appeals against an order of refusal of bail under the Act itself.

While India still aims for a casteless society, the Act needs to be strengthened.
Simultaneously, frivolous and malicious prosecution needs to be discouraged and the right of
bail serves the purpose. The bench of the Supreme Court said in the concluding para of the
review judgment: “The creation of a casteless society is the ultimate aim.

Another judgement came in the same year which discussed the circumstances under which
the pre arrest bail could be granted and the bench aligned itself with the previous judgement
and reiterated the same thing:

“Anticipatory bail can be granted for offences under the Act only in the event of no prima
facie case being made out. The Supreme Court has alerted the courts to be cautious while
exercising such power.”14

PREVENTION OF MONEY LAUNDERING ACT, 2002 (PMLA)

The Prevention of Money Laundering Act, 2002 (PMLA) has all the characteristics of a
modern day criminal Act. It is unique since it creates a completely new offence i.e. money
laundering which is linked with most other criminal offences. Since “money laundering”
deals with property acquired using “proceeds” of other crimes, it becomes a complex offence.
It can be seen that both NDPS Act15 and MCOCA16 permit the court to enlarge the accused on
bail if it is reasonably satisfied about the innocence of the accused regarding the offences
dealt with by the respective statutes and further if it is satisfied that the accused would not
commit that crime if let out on bail. When it comes to PMLA, the ambit of the bail provision
of the statute is/was much broader. As mentioned above ‘money laundering’ is a complex

14
Mohandas C. v. Sub Inspector of Police, (2020) SCC OnLine Ker 4783 (India).
15
S. 36C (2) of the NDPS Act, 1985.
16
S. 21 (4) of MCOCA, 1999.
offence which is inextricably connected to many other offences. Therefore, the Schedule to
the Act has three parts namely A, B and C which contains various offences as made culpable.
In particular Part A contains offences under the Indian Penal Code, 1860 as well as offences
under most Special Acts including NDPS Act, MCOCA and Prevention of Corruption Act.
Section 44 of the Act permits the Special Court under the Act to try an offence under section
4 of the Act and “any scheduled offence connected to the offence under that Section”. Further
section 45 of the Act, which deals with the power of the Special Court to grant bail, reads
thus: Section 45. Offences to be cognizable and non bailable: (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an
offence punishable for a term of imprisonment of more than three years under Part A of the
Schedule shall be released on bail or on his own bond unless: (i) the Public Prosecutor has
been given an opportunity to oppose the application for such release; and (ii) where the
Public Prosecutor opposes the application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not likely to commit
any offence while on bail. This section unlike the analogous sections in the NDPS Act and
the MCOCA applies the twin conditions cumulatively for a scheduled offence and not for an
offence under the Act. In other words, if a person is accused of having committed minor
offences under the Indian Penal Code, he/she would be entitled to bail as per section 439 of
the Code. However, if he/she is also accused of having committed an offence under section 4
of PMLA, then he/she will have to satisfy the twin tests laid down in section 45 of the Act, so
far as the said offences are concerned. Moreover, even if a person is only accused of a
Scheduled Offence, merely because the trial is being conducted jointly with others accused of
offences under PMLA, the former would be subjected to the double test scrutiny under
section 45. Another anomaly that arose in this context was that when it came to anticipatory
bail, there was no bar under the Act. Therefore, the provisions of section 438 of the Code
would continue to be applied when a person seeks pre-arrest/anticipatory bail for all offences
including the scheduled offences. The result would be that it was easier to get anticipatory
bail in case of offences under PMLA than to seek regular bail after arrest. In the case of
Nikesh Tarachand Shah v. Union of India17, the Supreme Court had to decide upon the the
constitutionality of Section 45 of PMLA which was challenged as being discriminatory and
arbitrary. The Court based on different arguments presented by the petitioner struck down
this section as unconstitutional.

17
(2018) 11 SCC 1 (India).
OTHER SPECIAL ENACTMENTS

The Meghalaya High Court in the case of Heiratami Biam v. State of Meghalaya 18 rejected an
anticipatory bail application which was filed when an FIR under Section 3(a)/4 of POCSO
Act was lodged by the Complainant as the mother of the victim alleging that the petitioner
had sexually assaulted and raped her minor daughter, after which she was sent for medical
examination. During the time of the formal investigation, the petitioner had approached the
Court of the Special Judge (POCSO), who had initially granted interim bail to the petitioner
and had called for the case dairy and after finally hearing the parties and had rejected the
application of the petitioner ordering him to be arrested in the said case. Thus, the instant
application was filed with this Court asking for a grant of pre-arrest bail on the ground that he
apprehended arrest.

The counsel for the respondent, K. Khan and A.H. Kharwanlang, opposed the grant of the
bail contending that statement of the victim clearly stated that she was raped by the petitioner
and statement of the petitioner states his admission to the fact that there was sexual
intercourse between him and the victim, who was a minor and therefore commission of
offence under Section 3 of the POCSO Act had been made out.

The Court stated that though the petitioner had not strenuously denied that he had committed
the alleged offence, he had however tried to cast some doubt on the same by stating that it
was very unlikely to have committed the offence as the place of occurrence was the servants’
quarter where there were about nine other employees staying there further after perusal of the
medical reports it was seen that the age of the victim was between 16 and 18 years, which
basically meant that she was still a minor at the time of occurrence and by law, any act,
sexual in nature with a minor is a crime.

Thus, considering the gravity of the offence the application of the anticipatory bail was
rejected.19

There are instances of wider application of section 438 and extended exercise of jurisdiction
by courts in the matters of anticipatory bail. Both procedural and jurisdictional matters, as
have been reported, need to be taken seriously and a rethinking to be developed. The question
18
Heiratami Biam v. State of Meghalaya, (2020) SCC OnLine Megh 102 (India).
19
Ibid.
whether section 12-AA of the Essential Commodities Act excludes sessions court's power to
grant anticipatory bail came for consideration in Kuppa Naidu v. State.20 Wherein the Andhra
Pradesh High Court held that the sessions court was not fettered from granting anticipatory
bail under the Essential Commodities Act. It reasoned: It is quite apparent from S.12-AA that
it does not postulate anticipatory bail at all to be granted and therefore, the exclusion of the
powers conferred under S.438 Cr. P.C. by the special provision under the Essential
Commodities Act, does not arise. Sec. 12-AA provides for release of persons after being
apprehended of arrest. An analogous provision is enacted under S.437 of the Cr. P.C.
Therefore, it is quite manifest that the principle of Generalia specialibus lion derogant has no
application in this case, in as much as, there is no express provision under the Essential
Commodities Act to grant anticipatory bail.21

In Siddharam Satlingappa Mhetre v. The State of Maharashtra and others22, The Hon'ble
Supreme Court has opined that, A great ignominy, humiliation and disgrace is attached to
arrest. In case where court is of considered view that accused has joined investigation and he
is fully cooperating with the investigating agency and is not likely to abscond, in that event,
custodial interrogation should be avoided, and anticipatory bail should be granted, which
after hearing public prosecutor, should ordinarily be continued till end of that. Once it is
granted, it will continue till the end of trial unless it is cancelled.

Section 1223 of the Juvenile Justice (Care and Protection of Children) Act dealt with the bail
of juvenile. If the Juvenile Board rejects the bail of Juvenile, then the remedy to the Juvenile
is to file the appeal under section 52 of the Act before the Sessions Court and after dismissing
the appeal, can avail remedy to file revision under section 53 of the Act before the Hon'ble
High Court. But bail under section 12 of the Act to the Juvenile is after arrest or detained or
brought before a Board. Therefore Juvenile can file the anticipatory bail application if he is
not detained. Non obstante clause in section 12 of the Act only has over riding effect over
section 436 and 437 of Cr.P.C. Hence, there is no bar to the juvenile to file anticipatory bail.24

20
1986 Cr.LJ 561 (India).
21
(1986) 1 Cr.LJ 561 (India).
22
(2011) 1 SCC 514 (India).
23
Section 12, The Juvenile Justice (Care and Protection of Children) Act, 2015.
24
Mohan v. State of Chhattisgarh 2005 CRI L.J. 3271 (India).
The above provision makes it clear that the power exercisable under Section 438 of the Code
is somewhat extraordinary in character and it is to be exercised only in exceptional cases,
where it appears that the person may be falsely implicated or where there are reasonable
grounds for holding that a person accused of an offence is not likely to otherwise misuse his
liberty. If anyone is declared as an absconder/proclaimed offender in terms of Section 8225 of
the Code, he is not entitled to the relief of anticipatory bail.

PRE-TRIAL INCARCERATION NEEDS JUSTIFICATION DEPENDING UPON

NATURE AND TERM OF OFFENCE

In Mohammad Junaid v. State of H.P.26, the court granted anticipatory bail to the petitioners
and observed that the Court is under constitutional obligation to safeguard the interests of the
victim, the accused, the society and the State while granting anticipatory bail.

The Court relied on the Judgments of Gurbaksh Singh Sibbia v. State of Punjab27
and Siddharam Satingappa Mhetre v. State of Maharashtra28, and held that custodial
investigation of the petitioner/accused is not going to serve any purpose. Few factors and
parameters can be taken into consideration while dealing with the anticipatory bail and no
inflexible guidelines or straitjacket formula can be provided for grant or refusal of
anticipatory bail. The question of whether to grant bail or not depends on its answer upon a
variety of circumstances, the cumulative effect of which must enter into the judicial verdict.
Any one single circumstance cannot be treated as of universal validity or as necessarily
justifying the grant or refusal of bail.”

NOT GRANTING ANTICIPATORY BAIL MAY CAUSE VIOLATION OF

FUNDAMENTAL RIGHTS OF AN INDIVIDUAL UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat29 was
pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code
25
Section 82, The Code of Criminal Procedure, 1973.
26
2020 SCC Online HP 296 (India).
27
(1980) 2 SCC 565 (India).
28
(2011) 1 SCC 694 (India).
29
AIR 2015 SC 2090 (India).
is conceptualised under Article 21 of the Constitution which relates to personal liberty.
Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light
of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest
legal process which directs that if the person in whose favour it is issued is thereafter arrested
on the accusation in respect of which the direction is issued, he shall be released on bail."

The apex court while observing the above celebrates the two provisions and related them
together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand
and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld
the fundamental right of the citizen.

But a duty has been thrust on the courts, to examine the facts carefully and to ensure that no
prejudice is caused to investigation. It is a delicate balance whereby the liberty of citizen and
the operation of criminal justice system have both to be safeguarded. Custodial interrogation
of such accused is indispensable necessary for the investigating agency to unearth all the
links involved in the criminal conspiracies committed by the persons which ultimately led to
capital tragedy Where it is pointed out that the action is malafide or tainted the courts are
required to reach out the conclusion and do justice by preventing harassment and unjustified
detention. Specific events and facts must be disclosed by the applicant in order to enable the
court to judge of the reasonableness of his belief, the existence of which is the sine qua non
of the exercise of power conferred by the section.

DURATION OF ORDERS

A Single Judge of Supreme Court in regard to length of the time for which the order of
anticipatory bails stay operative, in the case of KL Verma v State30 held that:

‘Anticipatory bail granted in anticipation of arrest in non-bailable cases, does not mean that
the regular court, which is to try the offender, is sought to be bypassed. That is the correct
procedure to follow because it must be realized that the Court of Sessions or the High Court
is grants anticipatory bail  at a stage when the investigation is incomplete and, therefore, it
is not informed about the nature of evidence against the alleged offender. Therefore it was
necessary that such anticipatory bail orders should be of a limited duration only and
ordinarily on the expiry of that duration or extended duration the court granting anticipatory
30
(1998) 9 SCC 348.
bail should leave it to the regular court to deal with the matter on an appreciation of
evidence placed before it after the investigation has made progress or the charge-sheet is
submitted.

By this, the Court desired to convey that an order of anticipatory bail does not ensure till the
end of trial but it must be of limited duration as the regular court cannot be bypassed. The
limited duration must be determined having regard to the facts of the case and the need to
give the accused sufficient time to move the regular court for bail and to give the regular
court sufficient time to determine the bail application. In other words, till the bail application
is disposed of one way or the other the court may allow the accused to remain on anticipatory
bail. To put it differently, anticipatory bail may be granted for a duration which may extend
to the date on which the bail application is disposed of or even a few days thereafter to enable
the accused persons to move the higher court, if they so desire.

The dictum laid in K.L. Verma’s case was upheld in the case of Salauddin Abdulsamad
Shaikh v. The State Of Maharashtra31 and Sunita Devi v. State of Bihar32 and it was held that
the Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry
of that duration or extended duration’ the Court granting anticipatory bail should leave it to
the regular Court to deal with the matter on an appreciation of evidence placed before it after
the investigation has made progress or the charge-sheet is submitted.  Though it was not
necessary that the operation of an order passed under Section 438(1) of the Code be limited in
point of time but the Courts could, if there were reasons for doing so, limit the operation of
the order to a short period, until after the filing of FIR in respect of the matter covered by the
order. The applicant, in such cases were required to obtain an order of bail under Section 437
or 439 of the Code within a reasonable short period after the filing of the FIR.
RIGHTS OF FIRST INFORMANT TO INTERVENE IN ANTICIPATORY BAIL
APPLICATION

The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of
Maharashtra33 held that, if victim of the offence appeared in the court seeking permission to
be heard, then opportunity of being heard is to be given to him or her.

31
(1996) 1 SCC 667 (India).
32
(2018) 16 SCC 354 (India).
33
(2009) ALL M.R. (Cri.) 687 (India).
However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra34 took
a slightly contrary view to what we discussed above. The court held that 

"The upshot of this analysis is that no vested right is granted to a complainant or informant
or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned,
comparative latitude is given to him but he must always bear in mind that while the
prosecution must remain being robust and comprehensive and effective it should not
abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is
the Public Prosecutor who must at all times remain in control of the prosecution and a
counsel of a private party can only assist the Public Prosecutor in discharging its
responsibility. The complainant or informant or aggrieved party may, however, be heard at a
crucial and critical juncture of the trial so that his interests in the prosecution are not
prejudiced or jeopardized.35

34
2014 (1) BOMCR (CRI) 558 (India).
35
Ibid.
CONCLUSION

It has been noted that most of the special legislations are covering grave and heinous offences
and have specific and stringent provisions regarding the grant of bail. Other statutes
ordinarily confer more discretionary powers upon the courts like provided under Ss 437/439
of the Criminal Procedure Code. From a cursory glance of the developments in the area it is
evident that the jurisprudence as far as the bail provisions of the Code are concerned seems to
be well settled. However, when it comes to some of the special legislations as covered in the
text above, it cannot be ignored that they work on different parameters and objectives. The
legislations draw the curious researcher to further understanding the influence of the crime
control objectives of penal law on the established due process considerations of the same. As
is evident from the provisions of the special legislations, the principle of presumption of
innocence, which has been sacrosanct and the bedrock of criminal jurisprudence, also
interpreted as a human right by the Supreme Court is turned upside down. But the problem
starts when exclusion of such provision opens the door for gross misuse of power against an
accused who might have not committed the said crime. We are an accusatorial system,
balancing the rights of an accused and not reversing the role to prove presumption of
innocence should be our paramount objective as legal scholars.
 BIBLIOGRAPHY

STATUTES
Code of Criminal Procedure, 1973
Indian Penal Code, 1860
Constitution of India, 1950
PMLA Act, 2002.
NDPS Act, 1985.
MCOCA, 1999.
JJ ACT, 2015.

BOOKS
R & D, Code of Criminal Procedure, (17th ed.)

ARTICLES
1. Bail under Special Legislation, Shyam D. Nandan & Deepa Kansra, Publication Of
The Indian Law Institute, 2019.
2. Anticipatory Bail Law In India, Amit Sorin, Ssrn Electronic Journal, 2009.

ONLINE SOURCES:
SCC
Jstore
Hein online