DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Project work of Criminal Procedure Code

SEMESTER – V

PROVISION OF ANTICIPATORY BAIL IN INDIA: BONE OR BANE

SUBMITTED TO: SUBMITTED BY:

Dr. Prem Kumar Gautam Sanskriti Verma
Associate Professor Section – ‘B’
(Criminal Procedure Code) Enrollment Number-210101131
BA LLB. (Hons.)

Dr. Ram Manohar Lohiya National Law University, Lucknow

1|Page
 ACKNOWLEDGMENT

I express my gratitude and deep regards to my professor Dr. PREM KUMAR

GAUTAM, for his guidance and constant supervision as well as for providing
necessary information regarding the project, also for his support in completing
the project. I extend my gratitude to my seniors, who constantly helped me find
the best source for research. Finally, I acknowledge the authorities as well as the
caretakers of Dr. Madhu Limaye Library, who provided me with the means to
make this project. This project is a result of my efforts combined with my
family and friends’ constant encouragement without which this assignment
wouldn’t have been possible.

THANK YOU

SANSKRITI VERMA

ENROLLMENT NUMBER-210101131

2|Page
 DECLARATION

I hereby declare that the project report analysis of the “PROVISION OF

ANTICIPATORY BAIL IN INDIA: BONE OR BANE” submitted by me to Dr.
Ram Manohar Lohia National Law University, Lucknow, Uttar Pradesh in
partial fulfillment and requirement for the award of the degree of B.A.
LL.B.(Hons) is recorded of bonafide project work carried out by me under the
guidance of Dr. Prem Kumar Gautam

I further declare that all the information and data that has been analyzed, and the
work done by me, is my piece of work and authentic to the best of my
knowledge under the supervision and guidance of my constitution professor.

SANSKRITI VERMA

ENROLLMENT NUMBER:210101131

3|Page
CONTENTS

1- Introduction 5
• Breakdown of the meaning of anticipatory
bail under Section 438 CrPC 6
• Stating the purpose of the project: to evaluate
whether anticipatory bail is more advantageous
(boon) or detrimental (bane) to the legal system 6
2- Historical Background 7
• The historical overview of how anticipatory
bail evolved in different legal systems 7-8
• Explaining the rationale behind its introduction 9
3- Advantages of Anticipatory Bail (Boon) 11-12
4- Criticisms of Anticipatory Bail (Bane) 13-14
5- Case Studies 14-16
6- Circumstances when anticipatory bail cannot be filed 16
7- Conclusion 17

4|Page
TITLE- “PROVISION OF ANTICIPATORY BAIL IN INDIA: BONE OR
BANE”

Introduction

The concept of anticipatory bail has long been a subject of debate and scrutiny within the
legal fraternity and society at large. Anticipatory bail is a legal remedy that allows individuals
to seek pre-arrest protection from the courts, thereby preventing their immediate incarceration
upon the filing of a criminal complaint. This provision was introduced into the legal systems
of various countries, including India, to strike a balance between safeguarding the rights of
individuals and ensuring the effective functioning of law enforcement agencies. However, its
application and impact on the legal system have been a matter of contention. This project
work aims to explore the intricacies of anticipatory bail, shedding light on its historical
evolution, its purpose, and the arguments presented both in favor of and against this legal
provision. It will examine how anticipatory bail serves as a potential boon by protecting
individuals from harassment and arbitrary arrests, while also delving into its potential pitfalls
and the challenges it poses to the administration of justice. Ultimately, it seeks to provide a
comprehensive understanding of whether anticipatory bail is a necessary safeguard or a
loophole that undermines the legal system. An order to release a person on bail even before
they are arrested is known as anticipatory bail. The superior courts have the authority to issue
anticipatory bail under Section 438 of the Code of Criminal Procedure.

According to the Law Commission, the goal of the creation of anticipatory bail was that
sometimes powerful people would try to incriminate their competitors in fabricated cases to
defame them or put them in jail. Anticipatory bail was introduced to help stop this behavior.

Breakdown of the meaning of anticipatory bail under Section 438 CrPC

Anticipatory bail is a legal concept under Section 438 of the Code of Criminal Procedure
(CrPC)1 in India. It provides a person with the right to seek pre-arrest bail or protection from
being arrested in anticipation of being accused of a non-bailable offense. The Criminal
Procedure Code, 1973 (Cr. P.C.) makes no mention of the term Anticipatory Bail Application
(ABA), but the 41st Law Commission Report, 1969 (the report), where the commission felt it

1
Code of Criminal Procedure 1973, § 438.

5|Page
necessary to include a provision for protecting an accused or any person who is apprehending
or has reason to believe that he or she may be arrested for any offense which is Non-Bailable
in nature, does define the term.

When drafting the 1973 Act, the Parliament introduced a provision for Pre-Arrest bail under
Section 438 with the heading "Direction for grant of bail to person apprehending arrest" in
account of the report and the urgent need of the hour. In accordance with Section 436 of the
Criminal Procedure Code, bail is a matter of right in cases where it is permissible, and under
Sections 437 and 439 of the same code, it is a matter of judicial discretion in cases where it is
not. While Sections 436, 437, and 439 only provide the granting of bail upon an arrest,
Section 438 allows for the granting of pre-arrest bail, also referred to as anticipatory bail.
Granting bail before an arrest occurs is referred to as anticipatory bail. The inclination to
falsely accuse someone in order to harm their reputation was realized, which gave the idea of
anticipatory bail more traction. There was an increase in cases when well-known people were
wrongly accused by their political adversaries of harassing and humiliating them by having
them jailed. An individual's right to personal liberty is a prized aspect of that right and cannot
be in danger. In addition, there are cases where someone accused is unlikely to tamper with
evidence, has no prior criminal history, or flee to avoid prosecution. The idea of pre-arrest
bail was created to safeguard these men's freedom. Y.V. Chandrachud C.J.'s observation that
a person who has not yet lost his freedom by being detained requests for freedom in the event
of arrest perfectly captures the essence of anticipatory bail. At that point, it is crucial to
preserve his freedom to fully uphold the presumption that he is innocent.

Stating the purpose of the project: to evaluate whether anticipatory bail is more
advantageous (boon) or detrimental (bane) to the legal system

The purpose of anticipatory bail is to give people legal protection from arrest in case they are
wrongfully charged or implicated in a crime. A person may request bail (temporary release
from custody) before being arrested or in expectation of being arrested thanks to anticipatory
bail, a legal remedy that is available in several legal systems, including India. In order to
shield people from being arrested in the event that they are unjustly accused of a crime or
implicated in it, anticipatory bail was created. In some legal systems, notably India, there is a
remedy known as anticipatory bail that enables a person to apply for bail (temporary release
from custody) either in advance of or in anticipation of being arrested. The nature and
seriousness of the offence, the possibility of evading justice, the likelihood that accusations

6|Page
will be brought against the applicant in an effort to harm or humiliate them, and other factors
may be taken into account by the court when deciding whether to grant or deny bail.

In order to give the Public Prosecutor a fair chance to present his case when the application is
called for a final hearing by the Court, the Court may also grant interim bail to the applicant
and order that a notice of at least seven days and a copy of the order be served on the Public
Prosecutor and the Superintendent of Police. When granting bail to an applicant, the High
Court or Court of Sessions may impose conditions based on the facts and circumstances of
the case, such as the requirement that the applicant make himself available to the police
officer whenever necessary for the purposes of the investigation and refrain from directly or
indirectly using threats, inducements, or promises to prevent a person who is familiar with the
facts of the case from disclosing those facts to the Court or the Sessions. In addition, the
Court may impose any requirement as allowed by Section 437 (3) of the CrPc. When
someone who has been granted anticipatory bail by the court is arrested, they must be freed
as soon as they are ready to give the police officer their bail. If a magistrate decides to order
an arrest in this situation, a warrant with the option of bail must be issued.

Historical Background

The historical overview of how anticipatory bail evolved in different legal systems

Anticipatory bail is a legal concept that allows a person to seek pre-arrest bail or protection
from arrest in anticipation of being accused of a non-bailable offense. This concept has
evolved differently in various legal systems around the world. The concept of anticipatory
bail is relatively new in legal history. It was first introduced in England in the early 20th
century, but it did not become widely adopted until the 1970s. Today, anticipatory bail is
available in many legal systems around the world, including India, the United States,
Pakistan, and England.

ENGLAND

The Habeas Corpus Act of 1862 served as England's first law requiring anticipatory bail. This
act, however, only applied to a few offenses and had a very narrow scope. In England,
anticipatory bail did not become generally available until the Bail Act of 1976. R. v. Stratton2
(1777), in which a man was given bail following an accusation of seditious libel, was the first

2
R. v. Stratton 1777.

7|Page
case of anticipatory bail in England to be documented. However, anticipatory bail did not
become extensively employed until the late 19th century. The Summary Jurisdiction Act,
introduced by the British Parliament in 1873, explicitly enabled magistrates to give bail to
people who had not yet been arrested.

USA

In the United States, the concept of anticipatory bail does not exist in the same way as in
India or Pakistan. Instead, the U.S. legal system focuses on post-arrest procedures, such as
the right to remain silent, the right to an attorney, and the right to a fair trial. Anticipatory bail
is not covered by any federal laws in the US. But some states have their own regulations
regarding anticipatory bail or a related idea known as "preventive detention." A individual
who has not yet been found guilty of a crime but is thought to be a danger to the community
is placed in preventive custody.

INDIA

Through the Code of Criminal Procedure (CrPC), anticipatory bail was first implemented in
India in 1973. This was a big change since it allowed people to ask for bail even before they
were arrested.

In India, anticipatory bail law has changed throughout time as a result of numerous court
rulings. The Indian Supreme Court has been particularly important in influencing the
legislation on anticipatory bail. The Supreme Court established the following standards for
issuing anticipatory bail in a significant case in 1980:

• The apprehension of arrest must be a genuine one.

• The applicant must be willing to cooperate with the investigation.
• There must be no reasonable grounds for believing that the applicant will abscond or
interfere with the investigation.

The Supreme Court has also held that anticipatory bail is not a matter of right and that it
should be granted only in exceptional circumstances. In India, anticipatory bail was
established by judicial interpretation as opposed to legislation. The important Gurbaksh Singh
Sibbia v. State of Punjab case from 1980 was crucial in establishing the notion. According to

8|Page
the Supreme Court of India, anticipatory bail may be given to stop the misuse of the legal
system.

A provision for anticipatory bail was subsequently added to the Criminal Procedure Code
(CrPC) in 1973. If a person has reason to suspect that they may be detained for an offense for
which there is no possibility of a bailable bond, they may now do so under Section 438 of the
Criminal Procedure Code.

PAKISTAN

Pakistan's legal system also recognizes the concept of anticipatory bail. It is primarily
governed by the Criminal Procedure Code (CrPC) of 1898, which was inherited from British
colonial rule.

Like India, anticipatory bail in Pakistan is a discretionary remedy provided by the courts.
Individuals may approach the courts, such as the High Courts or the Supreme Court, seeking
pre-arrest bail if they can demonstrate a legitimate fear of arrest in a non-bailable case.

Explaining the rationale behind its introduction

Anticipatory bail was not included in the Code of Criminal Procedure (1898). As a result of
judicial rulings interpreting Sections 496, 497, and 498 of the Code of Criminal Procedure3,
1898, anticipatory bail has developed. Conditions under which bail should be granted were
covered by Section 496. Section 497 addressed the situations under which bail may be
granted for offenses that are not subject to bail. The power of the High Court or the Court of
Session to order admission to bail or a reduction of bail was covered under Section 498. The
Law Commission, which thought it would be a useful addition to the protection of a person's
rights, suggested the idea. The 41st Law Commission Report from 19694 was the first to refer
to the idea.

The Law Commission observed:

“The necessity for granting anticipatory bail arises mainly because sometimes influential
persons try to implicate their rivals in false cases for the purpose of disgracing them or

3
Code of Criminal Procedure 1973, § 496, 497, 498
4
Law Commission, Report on [The Code of Criminal Procedure, 1898], Law Com No 41 (HMSO 1969).

9|Page
for other purposes by getting them detained in jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing signs of steady increase.”

In paragraph 31 of its 48th Report (1972), the Law Commission of India stated that
anticipatory bail was consistent with the recommendations of the 41st Law Commission.
Despite supporting the clause, the Commission emphasized that it should only be used in
extreme circumstances. The initial ruling should be temporary to prevent dishonest
petitioners from abusing the provision. The final decision granting anticipatory bail should
only be made after notifying the public prosecutor. The Commission additionally stated that
the Section should clearly declare that such an order can only be issued following reasoning
and if the court is persuaded that doing so is required for the "interest of justice". The legal
provision for the granting of anticipatory bail under Section 438 of the Code of Criminal
Procedure, 1973 was somewhat modified from Section 447 of the Code of Criminal
Procedure Bill, 1970.

Anticipatory In 1973, bail was incorporated into the Criminal Procedure Code (Cr.P.C. ),
following the recommendation made in the 41st Law Commission Report (1969). This
provision was introduced in order to prevent the arbitrary restriction of an individual's right to
personal liberty.

Necessity:

Sometimes powerful people attempt to falsely accuse their rivals to discredit them or to
further their own agendas by imprisoning them. With the exception of fabricated instances, it
is not necessary to take someone into custody, keep them in jail, and then file for bail where
there are good reasons to believe that the person accused of a crime is not likely to misuse his
or her freedom while on bail. In these circumstances, bail might be granted sooner.

People should be protected since arbitrary arrests (which frequently result in harassment and
humiliation of individuals) continue to be a widespread problem in the nation. This was the
fundamental justification behind the passage of Section 438 into the Criminal Procedure
Code, which even won support from the Parliament as a necessary foundation for defending
an individual's right to privacy in a free and democratic nation.

The legislation governing anticipatory bail has expanded and become more accepting of
individual liberties throughout time. For instance, anticipatory bail was formerly typically
only given when the individual charged with the offense was in danger of being prosecuted or

10 | P a g e
subjected to unfair treatment. However, anticipatory bail is now increasingly frequently
granted, even if the criminal suspect is not in danger of retaliation or unfair treatment.

The fact that courts are now more inclined to grant bail in situations involving serious
offenses is another way that the legislation on anticipatory bail has changed. In the past, less
serious offences were typically the only ones for which anticipatory bail was given. However,
in cases involving violent offenses like murder and rape, courts are now more likely to grant
bail. Anticipatory bail has changed over time, reflecting the developing understanding that
individual rights, especially the right to personal liberty, are fundamental. A useful
instrument for defending individual rights against the state's unreasonable intrusion is
anticipatory bail.

Advantages of Anticipatory Bail (Boon)

A legal provision known as anticipatory bail enables a person to apply for protection from
arrest in advance of being charged with a crime for which there is no set amount of bail. This
clause offers a number of benefits, making it an important legal option in many nations,
including India.

The following are some benefits of anticipatory bail:

1- Protection of Personal Liberty: The Constitution's fundamental guarantee of an

individual's right to personal liberty is aided by anticipatory bail. It stops arbitrary
detention and arrest of a person based on unproven accusations. An individual's right
to personal liberty is safeguarded through anticipatory bail. The legal system makes
sure that a person's freedom is not restricted without following the correct procedures
by enabling an accused person to seek their release from jail even before the arrest.
2- Prevention of Abuse of Power: It acts as a check on the possible abuse of authority
by law enforcement organizations, guaranteeing that they cannot make unjustified or
arbitrary arrests of people.
3- Prevents Harassment: Anticipatory bail's main advantage is that it stops the
harassing of innocent people. Without anticipatory bail, a person who has been
wrongly accused of a crime for which there is no possibility of a bond may be
detained for a protracted amount of time. The accused and their families may suffer
emotional and bodily harm as a result.

11 | P a g e
 4- Ensures Effective Defense: Anticipatory bail guarantees that a suspect can put
together a strong defense against the accusations leveled against them. Without
anticipatory bail, a defendant would have to defend themselves while in custody,
which can be quite challenging.
5- Prevents the accused from absconding: Anticipatory bail could help to prevent the
guilty from escaping justice. A person who has been given anticipatory bail must
show up in court whenever they are called upon to do so. They risk having their bail
revoked and being arrested if they don't comply.
6- Ensures the accused's right to a fair trial: Anticipatory bail ensures that the accused
has the opportunity to prepare their defense and present their case in court. It also
prevents the accused from being prejudiced by the fact that they are in custody.
Allows the person to continue working and supporting their family: Anticipatory bail
allows a person to continue working and supporting their family while they are on
trial. This is important because being in jail can lead to financial hardship and social
isolation.
7- Protects the accused from social stigma: Being arrested and jailed can be a very
traumatic experience. It can also damage the accused's reputation and make it difficult
to find a job or reintegrate into society. Anticipatory bail can help to protect the
accused from this social stigma. Anyone who is held and arrested, even for a short
time, may suffer social stigma and reputational harm. Bail anticipation aids people in
avoiding these repercussions.
8- Upholding the Presumption of Innocence: By allowing anticipatory bail, the legal
system respects the core tenet of criminal justice, which is that everyone is presumed
innocent until and unless proven guilty.

Criticisms of Anticipatory Bail (Bane)

In some nations, there is a legal provision known as anticipatory bail that enables people to
apply for release before to being arrested if they anticipate being charged with a crime.
Although anticipatory bail is meant to shield people from potential harassment and wrongful
arrest, it has come under fire over the years. Following are some criticisms of anticipatory
bail:

1- Potential for Misuse: The possibility that people who are truly guilty of a crime
could abuse anticipatory bail is one of the main accusations leveled against it. It can

12 | P a g e
 hinder the investigation and prosecution of criminal cases because dishonest people
may use it as a means of avoiding capture and delaying the legal procedure. People
who are aware that they are about to be arrested for a crime may abuse anticipatory
bail. Even if they are not eligible for anticipatory bail, they can utilize their
connections or influence to get it. This may result in the accused eluding prosecution.
2- Delay and evasion of justice: In circumstances where people are suspected of major
crimes, critics claim that anticipatory bail might help them evade the law. This can
make it more difficult for the judicial system to hold criminals accountable for their
acts. Anticipatory bail can slow down the legal system since the accused may utilize it
to postpone their trial or avoid showing up in court. The victim's family may feel
unjustly treated as a result. Police officers may misuse anticipatory bail. A person
who has been given anticipatory bail may not be detained by the police, even if they
have committed a crime. Because of this, perpetrators may go unpunished and victims
may not receive justice.
3- Interference with Investigations: An investigation into a crime can sometimes be
hampered by the granting of anticipatory bail. Even if they have solid evidence, police
can be hesitant to make an arrest of someone who has anticipatory bail, which makes
gathering evidence and following leads more difficult. It damages the legitimacy of
the legal system and can result in a lack of trust in the system when offenders are able
to abuse anticipatory bail.
4- Burden on the Judiciary: The process of obtaining anticipatory bail might take a
long time and add to the court's workload. This can cause other cases to be delayed
and add to the backlog of unresolved legal issues. Applications for anticipated bail
might add to the court system's already heavy workload. In other situations, this can
cause delays.
5- Encouragement of Flight: It is sometimes more difficult for law enforcement to
apprehend criminals because anticipatory bail may encourage people to leave the area
or hide. A defendant running away from justice or leaving the country may be more
likely if they are given an anticipated bail. Particularly when the accused is being held
on serious accusations, this is true.
6- Erosion of Trust in the Legal System: Public trust in the justice system may be
damaged by the use of anticipatory bail in high-profile cases. The perception of
inequality before the law might result from the suggestion that the powerful and
wealthy can use the law to avoid accountability. It damages the legitimacy of the legal
13 | P a g e
 system and can result in a lack of trust in the system when offenders are able to abuse
anticipatory bail.
7- Increase in the crime rate: According to some, anticipatory bail can promote crime
because of the increased confidence that criminals may feel when committing a crime
knowing that they would likely be granted anticipatory bail. Anticipatory bail can
promote crime by enabling those who have been accused to avoid arrest and
punishment. Given that they can easily get anticipatory bail if they are caught, this
may give offenders more confidence and increase their likelihood of committing
crimes.

Case Studies:
Landmark cases that highlight both positive and negative aspects of anticipatory bail

Balchand Jain v. State of MP5

When discussing the applicability of section 438 in Balchand Jain v. State of MP, Bhagwati,
J. pointed out that although if the term "anticipatory bail" is not used in the section itself, the
section deals with the question of it. Anticipatory bail, in his opinion, was an incorrect term.
When a judge orders "anticipatory bail," it orders that a person be expanded on bond if they
are arrested. Prior to being arrested, the issue of release on bond does not come up, and the
ruling granting "anticipatory bail" only takes effect after the arrest. It covered several
important anticipatory bail conditions. When granting anticipatory bail, the Honorable
Supreme Court established two conditions. The prosecution was given the opportunity to
object to the application for release, and the second requirement was that the court must be
convinced that there were good grounds to believe the defendant was innocent of any
violation of any rules or directives issued by the federal or state governments.

Gurbaksh Singh Sibbia v. State of Punjab6

In Gurbaksh Singh Sibbia v. State of Punjab14, the Supreme Court of India's Constitutional
Bench rendered a significant ruling about anticipatory bail. A challenge to the decision of the
Full Bench of the High Court of Punjab and Haryana brought the case to the Supreme Court
(SC). In the case, the then-Minister of Irrigation and Power of the Punjabi government, who
was accused of political corruption, applied for anticipatory bail. The High Court of Punjab

5
Balchand Jain v. State of MP AIR 1997 SC 66.
6
Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632.

14 | P a g e
and Haryana placed several restrictions on the use of the authority granted by Section 438 of
the Code. According to the High Court, the powers granted by Section 438 should not be
used in serious instances, such as those involving specific types of economic crimes or
offenses carrying a death sentence or a life sentence. The Court further interpreted section
438 to include the restrictions imposed by section 437 and prohibited using these powers
when the accused was obliged to testify in accordance with section 167(2) of the Criminal
Procedure Code or section 27 of the Indian Evidence Act 1872. The Court further stated that
the authority should only be used in extreme circumstances. Before granting an anticipatory
bail order under section 438, the court must be satisfied that any claims of malfeasance in the
petition were substantial and that the accusations appeared false and without merit. There
could be no award of a blanket anticipatory bail order. Before granting an anticipatory bail
order under section 438, the court must be satisfied that any claims of malfeasance in the
petition were substantial and that the accusations appeared false and without merit. There
could be no award of a blanket anticipatory bail order.

Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr7

In the matter of Badresh Bipinbai Seth v. State of Gujarat, the Honorable Supreme Court was
happy to rule that: Article 21 of the Constitution, which deals with personal liberty, serves as
the conceptual framework for the anticipatory bail provision established in Section 438 of the
Code. Therefore, in light of Article 21 of the Constitution, such a provision necessitates a
liberal interpretation of Section 438 of the Code. According to the Code, anticipatory bail is a
pre-arrest legal procedure that stipulates that if the person for whom it is granted is
subsequently arrested on the charge for which the direction is given, he should be freed on
bail. While observing the aforementioned, the apex court connected the two
provisions together. The court noted with pleasure that Section 438 and Article 21 go hand in
hand and that the legislature has preserved the citizen's fundamental right by adopting the
provision for grant on anticipatory bail.

When an offense has a maximum sentence of seven years in prison, section 41 (A) of the
Criminal Procedure Code must be followed.

Sushila Agarwal v. State of Delhi8

7
Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr 2016 1 SCC 152.
8
Sushila Agarwal v. State of Delhi.

15 | P a g e
While making its decision on the landmark judgment, the honorable court took the
opportunity to address two questions:

(1) Should the protection provided by Section 438 of the Criminal Procedure Code be
limited to a specific time period to allow the recipient to appear before the trial court and
request regular bail, and (2) Should the life of anticipatory bail end at the moment the
accused is summoned to court.

2-The Constitutional Bench of the Supreme Court was happy to respond to the first query by
stating that the court granting anticipatory bail cannot put a time restriction for it. The
unanimous decision by the five judges that:

The protection provided by Section 438 of the Criminal Procedure Code should not always be
finite in time; rather, it should benefit the accused without any temporal limits.

In response to the second question, the Honorable court ruled that:

An anticipatory bail order's life or length does not often terminate at the time and stage when
the accused is ordered to appear in court or when charges are filed but may instead last until
the conclusion of the trial. Again, the court is free to shorten the duration of anticipatory bail
if any unique or extraordinary circumstances require it.

Circumstances when anticipatory bail cannot be filed

1- The Karnataka High Court declared in the case of Ramesh v. State (2022)9 that an
accused person who appears in court, whether through a lawyer or in person, is not
eligible to apply for anticipatory bail.
2- According to Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, a person who commits an offense under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not eligible to request
anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Act of
2018 amending the "Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities)" However, the Chhattisgarh High Court decided in the case of Jawed Khan
v. the State of Chhattisgarh (2022) that anticipatory bail might be granted if the
offense appears to be an abuse of the law. In K. M. Basheer v. Rajani K.T & Ors and
Connected Cases (2022), the Kerala High Court ruled that only the Special Court or

9
Ramesh v. State.

16 | P a g e
 the Exclusive Special Court established under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, can consider applications for anticipatory
bail. According to Sections 438 and 482 of the Criminal Procedure Code, the High
Court does not have the authority to issue bail for offenses under the Act, it was
further ruled. The decision regarding whether to grant anticipatory bail will be subject
to the High Court's appeal authority under Section 14A.
3- When accused of an economic crime, the Supreme Court declared in Directorate of
Enforcement v. Ashok Kumar Jain (1998) that the defendant is not eligible for
anticipatory bail.
4- Section 438 discretion cannot be used in circumstances where the prisoner faces the
death penalty or a life sentence, unless the court is instantly convinced that the
accusation against him or her is untrue or without foundation.

Conclusion

In the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (1977)10, the Honorable
Supreme Court ruled that "Bail is a rule and jail is an exception." For those who have been
falsely accused of crimes, anticipatory bail has been utilized as a defense against unjustified
detention. In extreme circumstances if the courts believe the petitioner is being falsely
charged, anticipatory bail must be used. In addition to protecting the accused's interests,
anticipatory bail is a legal requirement that prevents the accused from abusing his freedom or
avoiding justice.

In conclusion, anticipatory bail is a complex component of the legal system that, depending
on how it is used and the situation in which it is administered, can be both a curse and a
blessing. On the one hand, it provides protection to people who are afraid of being arrested in
situations where they think they might be wrongly accused or harassed by law enforcement.
It provides a legal safeguard against potential abuse of power and supports the "innocent until
proven guilty" premise.

However, anticipatory bail can also be a problem if it is utilized improperly to escape

punishment for actual criminal activity. There have been cases where powerful people have
abused this clause to avoid justice, undermining the legal system's integrity. Any judicial

10
State of Rajasthan, Jaipur v. Balchand @ Baliay 1977 AIR 2447.

17 | P a g e
system faces a difficult challenge in finding the proper balance between preserving individual
rights and making sure victims receive justice.

18 | P a g e