ANTICIPATORY

BAIL/PRE-ARREST BAIL
  ANTICIPATORY BAIL- SECTION 438CRPC
 CANCELLATION OF ANTICIPATORY BAIL
 REFUSAL
 GUDIKANTI CASE
 SUSHILA AGRAWAL CASE
OUTLINE  SECTION(S) 436, 436 A
  WHAT IS ANTICIPATORY BAIL?
 WHAT IS THE NEED OF ANTICIPATORY BAIL?
 41ST LAW COMMISSION REPORT
 IS FILING F.I.R. IMPORTANT FOR ANTICIPATORY BAIL?

Section 438  UNTIL WHEN BAIL SHOULD BE GRANTED? WHAT

DURATION?
 IN WHICH COURT IT IS APPLIED?
 IF ORDER GIVEN, WHEN OPERATIVE?
  STATE: UTTAR PRADESH: Crime Against Woman and

NOT Children
 ACT:SC/ST ACT
APPLICABLE  CASES: CORRUPTION, ECONOMIC, RAPE CASES
ANY BAIL CAN
 SECTION 437(5)
BE CANCELLED
 SECTION 439(2)
AT ANYTIME
UNDER
  Direction for grant of bail to person apprehending arrest.(1) When any person has reason to
believe that he may be arrested on an accusation of having committed a non- bailable offence, he
may apply to the High Court or the Court of Session for a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
think fit, including-(i) a condition that the person shall make himself available for interrogation
by a police officer as and when required;
 (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;

SECTION 438 

(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail
were granted under that section.
 (3) If such person is thereafter arrested without warrant by an officer in charge of a police station
on such accusation, and is prepared either at the time of arrest or at any time while in the custody
of such officer to give bail, be shall be released on bail; and if a Magistrate taking cogniz-
 ance of such offence decides that a warrant should issue in the first instance against that person,
he shall issue a bailable warrant in conformity with the direction of the Court under sub- section
(1).
 REFUSAL TO GRANT ANTICIPATORY
BAIL
A few circumstances under which Anticipatory Bail may be refused are:

 The possibility of the Applicant to abscond in the event cognizance is taken by the trial court or
warrant of arrest has been issued by the trial court.
If the prima facie case with which the Applicant has been charged can be made out.

 The Applicant has previously undergone an imprisonment on conviction in respect of any

cognizable offence.
Where a case can be made out that the Applicant is capable of influencing investigation to his
advantage.

 Status in life, affluence or otherwise should not be relevant considerations for the Court granting
Anticipatory Bail.
Anticipatory bails are mostly refused to the people who are not
cooperating with the investigation or it requires custodial interrogation
or in any way they are influencing the evidence of the case, then
awarding of anticipatory bails becomes tough, moreover sometimes the
heavy section of crimes like Ss. 302, 307, 376, 120B, 420, 467, 468 etc
of IPC, S. 13 of the Prevention of Corruption Act, etc also results in
rejection of the application.
 CANCELLATION OF ANTICIPATORY BAIL

 The power to cancel the Anticipatory Bail is vested with the

Court who grants the same, which can be due to new or
supervening circumstances arise after the release on bail such
as abuse of liberty by hampering the investigation or tampering
with witness or committing same or similar offence or a case is
made out in a petition filed under Section 439 of Criminal
Procedure Code, 1973.

 The Courts may therefore grant anticipatory bail, but with a

view to prevent the person hampering the investigation
provision/s may be made by the Court granting anticipatory bail
subject to such conditions as it thinks fit.
• Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of
anticipatory Bail. They imply that a Court which has the power to
grant anticipatory Bail is also empowered to cancel the Bail or
recall the order related to Bail upon appropriate consideration of
facts.
• Investigating agency may move court which granted such bail for a
direction of arrest under Section 439(2).

• It is open to the police or the investigating agency to move the court

concerned, which grants anticipatory bail, for a direction under
Section 439 (2) to arrest the accused, in the event of violation of any
term.
GUDIKANTI NARSIMHULU V. PUBLIC PROSECUTOR 1978
  Case related to larger interest of public:
 JUDGMENT BY JUSTICE KRISHNA IYER in STATE OF
RAJASTHAN V BALCHAND 1977
BAIL OE  "Bail or jail ?"- at the pre-trial or post- conviction stage-

JAIL? belongs to the blurred area of the criminal justice system and
largely binges on the hunch of the bench, otherwise called
judicial discretion. The Code is cryptic on this topic and the
court prefers to be tacit, be the ..”
 Relied on Article 21- personal liberty
 The vital considerations are while granting bail:
 (a) The nature of charge, the nature of the evidence and, the
punishment to which the party may be liable, if convicted.
 When the crime charged is of the highest magnitude and the
punishment of it assigned by law is of extreme severity, the
court may reasonably presume, some evidence warranting that
no amount of bail would secure the presence of the convict at
the stage of judgment.
 (b) whether the cause of justice would be thwarted by him who
seeks the jurisdiction of the court to be freed for the time being
 (c) whether the petitioner's record shows him to be a habitual
offender;
  The issue of "Bail or Jail"-at the pretrial or post-conviction
stage-although largely hinging on judicial discretion, is one of
liberty, justice, public safety and burden of the public treasury,
all of which insist that a developed jurisprudence of bail is
integral to a socially sensitized judicial process.
Held  Personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of "procedure established
by law".
 The principal rule to release on bail should be to secure the
presence of the applicant who seeks to be liberated, to take
judgment and serve sentence in the event of the court punishing
him with imprisonment.
 In this perspective, relevance of considerations is regulated by
their nexus with the likely absence of the applicant for fear of a
severe sentence.
SUSHILA AGGARWAL V. STATE (NCT DELHI).
2020 SCC ONLINE SC 98

ISSUES
• 1. Should there be a fixed time period to seek anticipatory Bail, so
as to enable a person to surrender before the Trial Court and seek
for regular Bail?
• 2. Should the life of anticipatory Bail end at the time of summoning
by the Court?
• 3. Can Courts impose any conditions while granting such Bail or
not?
 Fixed time period

 There is nothing in CrPC that indicates the grant of anticipatory Bail should
be time-bound.

o However, under CrPC, it is discretionary power of the Court to decide on a

case-to-case basis and impose a time limit while granting pre-arrest Bail.

o Also, this duration primarily does not end after first summoning by the Court
and can continue till the end of the trial period.
 Condition on Bail

 If any Court wants to limit the Bail, it can attach special features or
circumstances warranting the same.

o The Court while granting anticipatory Bail, should examine

the seriousness and gravity of the offence (like nature of the
crime, material placed on records, etc.) to impose any
condition on the petitioner, if necessary.

o The police can approach the Court seeking permission for

arrest in case of breach of such imposed conditions.
 FIR

 Application for anticipatory Bail could be filed by a person before

the FIR (First Information Report) as soon as the facts make clear
there is a substantial reason for the arrest. – FIR need not be
registered to seek ANTICIPATORY BAIL

 Appellate jurisdiction- To check the correctness of the granted Bail

lies with the superior Court on the request of the investigating
agency or the State.
 The Court remarked that “when Parliament has not thought it
appropriate to curtail the rights of the citizens and the power of
Courts in granting anticipatory Bails, hence, it is not in larger
societal interest to curtail such powers & limit the liberty of
citizens. The rights of the citizens are fundamental and not the
restrictions.”

 The five-judge bench was pleased to unanimously hold that " the
protection granted to a person under Section 438 Cr.PC should not
invariably be limited to a fixed period; it should be extended in
favour of the accused without any restriction on time."
 Validity of Anticipatory Bail after
Summon

 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
necessitating 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 case.
 Justice Shah was of the opinion that the normal rule should be not to
limit the operation of the order in relation to a period of time. He,
however, added ,“the conditions can be imposed by the concerned
court while granting pre­arrest bail order including limiting the
operation of the order in relation to a period of time if the
circumstances so warrant, more particularly the stage at which the
“anticipatory bail” application is moved, namely, whether the same
is at the stage before the FIR is filed or at the stage when the FIR is
filed and the investigation is in progress or at the stage when the
investigation is complete and the charge sheet is filed.”
 Justice Bhat in his opinion wrote, “it would not be in the larger
interests of society if the court, by judicial interpretation, limits the
exercise of that power: the danger of such an exercise would be that
in fractions, little by little, the discretion, advisedly kept wide, would
shrink to a very narrow and unrecognizably tiny portion, thus
frustrating the objective behind the provision, which has stood the
test of time, these 46 years.”
Section 436
Section 436 A