“ BAIL IS A RULE AND JAIL IS AN EXCEPTION “

ANTICIPATORY BAIL

The term Anticipatory Bail is nowhere defined in the Criminal

Procedure Code, 1973 (Cr.P.C), however the first mention of the
term can be seen in the 41st Law Commission Report, 1969 (the
report) where the commission felt the need to include a provision
for protecting an accused or any person who is apprehending or
having a belief that he/she may be arrested for any offence which
is non-bailable in nature. Taking into consideration the said report
and the grave need of the hour, the Parliament while enacting the
1973 Act, added a provision for Pre-Arrest bail u/s 438 with a
heading ”Direction for grant of bail to person apprehending
arrest”.

DEVELOPMENT OF LAW ON ANTICIPATORY BAIL

Under the Code of Criminal Procedure (1898), there was no
provision related to anticipatory bail.

The concept was first mentioned in the 41st Law Commission.

Section 497A was inserted after the report of 1969, which dealt
with the direction to grant bail to a person apprehended for arrest
for committing a non-bailable offence. Such an individual could
apply to the High Court or the Court of Session, which has
discretionary power to grant bail.

Section 447 of the Code of Criminal Procedure Bill, 1970, was

modified slightly to become the legal provision for the granting of
anticipatory bail under Section 438 of the Code of Criminal
Procedure, 1973.
• Amir Chand v. Crown (1949)
The Punjab-Haryana High Court remarked that if a person
who has been issued an arrest warrant but is not already in
custody can appear in court and surrender himself, bail may
be granted.

• State v. Jagan Singh (1952)

The Madhya Pradesh High Court acknowledged the idea that
bail might be granted in anticipation to a person who
surrenders before the court out of fear of being detained by
the police for any cognizable offence.

• Balachand v. State of Madhya Pradesh (1976)

It was a landmark anticipatory bail case. It addressed several
vital principles related to anticipatory bail. The Hon’ble
Supreme Court imposed two conditions on the granting of
anticipatory bail.
The first condition was that the prosecution was allowed to
object to the application for release.
The second condition was that the court must be satisfied
that there were reasonable grounds to believe that the
applicant was not guilty of any violation of any provision of
 the rules or orders made by the Central Government or the
State Government.

SECTION 438
Sub-Section 1 - If any person has reason to believe that he
may be arrested on accusation of having committed a non-
bailable offence he may apply to Session Court or High Court for
a direction to be released on bail during such arrest .
Following factors were taken into consideration by the court while
granting a bail :
a. Nature and Gravity of accusation ;
b. About the previous life of the applicant that whether he has
previously undergone imprisonment on conviction by a court
in respect of any cognizable offence ;
c. Possibility of applicant to run away from justice ;
d. To check whether the accusation has been made with the
object of injuring or humiliating the applicant by having him
so arrested.

After considering the above factors court my either reject the

application or issue and interim order for the grant of
anticipatory bail.

PROVISION – If the Session Court or High Court rejects or not

issue the interim order on the application for grant of
anticipatory bail , the officer in charge of a police station was
 allowed to arrest the applicant , without the warrant on the
basis of the accusation apprehended in such application .

1A – When courts grants an interim order, a 7 days notice with a

copy of such order to be served on the Public Prosecutor and
Superintendant of Police , to give the public prosecutor a
reasonable opportunity of being heard on the final hearing of the
application by the court.

1B – Presence of the applicant seeking anticipatory bail was

necessary at the time of final hearing of the application and
passing of the final order by the court .

Sub-section 2 – While making the directions on application for

grant of anticipatory bail, the High Court or Court of Session may
include following conditions in such directions as per the facts of
the particulars case as it may thinks fit –
1. The person shall make himself available for interrogation by
a police officer ,whenever required ;
2. 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 prevent him from disclosing
such facts to the court or to police officer .
3. The person shall not leave India without the previous
permission of the court .
4. Other conditions mentioned under section 437 .
Sub-Section 3 – If after courts direction the person thereafter
arrested he shall be released on bail , and if the magistrate is
taking cognizance of the offence , he shall issue bailable warrant.

Sub-Section 4 – This section does not apply on the case

involving the arrest of a person on accusation of having
committed an offence under section 376(3) or 376DA or 376AB or
376DB of IPC.

AMENDMENT UNDER UTTAR PRADESH

• On the date indicated in the interim order , the court shall

hear the public prosecutor and the applicant and after due
considerations of their opinions , it may either confirm ,
modify or cancel the interim order.
• Provisions to this section shall not be applicable –
A) to the offences arising out of -
-UNLAWFUL ACTIVITIES(PREVENTION) ACT , 1967 ;
-NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT
,1967;
-OFFICIAL SECRET ACT, 1923;
UTTAR PRADESH GANGSTERS AND ANTI - SOCIAL
ACTIVITIES(PREVENTION) ACT ,1986.
B) In the offences , in which death sentence can be awarded .
If an application under this section made by any person or the
high court , no application by the same person shall be
entertained by the court of session
ANTICIPATORY BAIL IN RELATION WITH
ARTICLE 21
As per 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 safeguards an
individual’s freedom and liberty against unjustified detention
and arrest, regardless of whether the person is an “accused,”
thus upholding the principle of innocence until proven guilty.

Anticipatory bail is a statutory rights. Anticipatory bail is the

obligation to uphold the fundamental right to personal liberty
in the case of false charges while adhering to the legal
concept of “innocent until proven guilty”.
Personal liberty is on of the leading/significant ground
for the Anticipatory Bail

CASE LAW

1. Gurbaksh Singh Sibbia & Ors. V. State of Punjab 1980( AIR 1632)
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.
It was stated that the anticipatory bail should not be of the
limited time limit; they can be imposed on a case to case basis.

2.Bhadresh Bipinbhai Sheth v. State Of Gujarat & Anr (2018)

Supreme Court determined that the provision of anticipatory bail
is included in Section 438 of the Code of Criminal Procedure and is
conceptualised under Article 21 of the Constitution, which pertains
to personal liberty. Thus, Section 438 of the Code must be
interpreted broadly in accordance with Article 21 of the
Constitution.

3.Vman Narain Ghiya vs the State of Rajasthan (CR.Appeal No.-

406/2018)
It was said that there should be a balance between the personal
liberty of the accused and the investigation of the police. The
suspect is not kept in legal custody with the objective of giving
punishment when he is not proven guilty.

4.Raj Bahadur Singh v. State of U.P. [CRIMINAL MISC

ANTICIPATORY BAIL APPLICATION 438 CR.P.C. No. – 8376 of 2022]
The bench of Justice Suresh Kumar Gupta further observed that as
opposed to Section 439 of CrPC (provision governing regular bail
pleas), which flows from Article 21 of the Constitution of India,
Section 438 of CrPC is merely a statutory right and the power to
grant anticipatory bail does not flow from Article 21 of the
Constitution.

LIFE OF ANTICIPATORY BAIL

1.Sushila Aggarwal and Others v. State (NCT of Delhi) (2020)

TheHon'ble court was pleased to frame 2 questions while deciding

the landmark judgment viz.:
1. Whether the protection granted to a person under Section 438
of Cr.P.C should be limited to a fixed period so as to enable the
person to surrender before the trial court and seek regular bail &
2. Whether life of anticipatory bail should end at the time and
stage when the accused is summoned to court.
The Constitutional Bench of the apex court was pleased to answer
the first question by holding that there can be no time limit set for
the Anticipatory Bail by the court granting the same. The five-
judge bench was pleased to unanimously hold that " the
protection granted to a person under Section 438 Cr.P.C should
not invariably be limited to a fixed period; it should inure in
favour of the accused without any restriction on time."
Answering the second question the Hon'ble court held that "The
life or duration of an anticipatory bail order does not end
normally at the time and stage when the accused is summoned by
the court, or when charges are framed, but can continue till the
end of the trial. Again, if there are any special or peculiar features
gnecessitating the court to limit the tenure of anticipatory bail, it
is open for it to do so."
The Supreme Court was cautious while answering the second
question by granting discretionary powers to the court to limit the
tenure of the Anticipatory Bail in case of special or peculiar facts
of the case.

IMPORTANT CASE LAWS

1.Subrata Roy Sahara v. Pramod Kumar Saini (2022) SLP 4877-
4878/2022
The Supreme Court ruled that inquiries in anticipatory bail
applications must be limited to the applicant’s case and relevant
information. It cannot be impleaded against third parties as it
would be in violation of Order 1 Rule 10 of the Code of Civil
Procedure, 1908.
2.Ankit Bharti v. State of Uttar Pradesh (2020)
The Allahabad High Court held that although the High Court and
Court of Session have concurrent authority, it is conventional to
approach the Court of Session first and subsequently the High
Court if the application is denied. Applications can be submitted
directly to the High Court when the reasoning is solid, logical, and
compelling.
3.Manish Yadav v. State of Uttar Pradesh (2022) CRL.MP
4645/2022
The Allahabad High court states that an anticipatory bail plea is
permissible if a proclamation under Sections 82 and Section 83 of
the Code of Criminal Procedure, 1973 is made against the accused
after the plea is filed.
4.Arnesh Kumar v. State of Bihar 2014
The Hon’ble Supreme Court held that while deciding an
application for anticipatory bail application for offences u/s 498A,
it is necessary to observe that there should be a mandatory notice
u/s 41A to be sent to the accused if he is booked for offence with
punishment up to 7 years.

5.State of Rajasthan, Jaipur v. Balchand @ Baliay (1977)

The Hon’ble Supreme Court in this case states that “Bail is a
rule and jail is an exception“. Anticipatory bail has been used as
a defence against unfair detention for persons wrongfully
accused of crimes. The power of anticipatory bail must be
exercised in exceptional instances when the courts consider the
petitioner is being falsely charged. Furthermore, in addition to
safeguarding the interests of the accused, anticipatory bail as a
legal measure forbids the accused from abusing his freedom or
evading justice
6.Satyendra Kumar Antil Vs CBI 2021 (SLP 5191//2021)
Under this case The Hon’ble Supreme Court gave a guidelines on
the procedures regarding the grant of a bail under various
offences in which court provides four categories of offences as –
Category A – Offences with less than 7 years of imprisonment
Category B – Offences punishable with more than 7 years of
imprisonment
Category C – Special Offences (N.D.P.S Act, Prevention of Money
Laundering Act , Unalwful Activities Prevention Act
Category D – Economic Offences
and also called upon government to consider framing a new law
on bail because –Rate on conviction in India is low due to which
deviates mind of court to negative while deciding bail application ,
there is a need of bail act , and Right of Liberty should must be
preserved of the people.