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Anticipatory Bail- Principles, cases and emerging trends

A quick explainer on Bail and Anticipatory Bail

"Bail means to set liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called bail. A security such as cash or a bond; especially, security required by a Court for the release of a prisoner who must appear at a future time"

---- as stated by Justice Thomas P. Joeseph in Mammunhi Thalangadi Mahamood vs State Of Kerala

Bail (Judge Gavel) and Money (Security) amount paid for bail

In present day criminal jurisprudence, the use of bail has increased significantly over the last few decades, as with the rise of population, there has been a rise in the number of crimes reported along with the rise in the number of falsely reported cases.

The issue of bail 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”.

Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

In a scenario like this, a lot of individuals who were in apprehension of their arrest either on fabricated grounds or through faults in the investigative procedure have sought the remedy of Anticipatory Bail.

Anticipatory Bail as discussed under Section 438 of the Criminal Procedure Code, 1973 (hereafter referred to as CrPC) is a very crucial tool at the hands of the accused and has greatly benefitted a large number of people as well, from the excesses of police harassment, undertrial duress, and unfair treatment in police custody.

In this article, we shall examine the following aspects of Anticipatory Bail-

  • Meaning

  • Conditions upon which Bail is granted.

  • Current Judicial view

  • Future

Meaning of Anticipatory Bail

Sub-Section (1) Section 438 of the CrPC has given quite a detailed explanation regarding Anticipatory Bail. Although it does not exactly employ the term Anticipatory, but it lays down that-

A person in Handcuffs

Any person who fears arrest, based out of a charge based on a non-bailable offence has the capacity to apply for bail under this Section.

Therefore, this provision allows the Courts i.e., the High Court or the Court of Sessions have the power under this Section, to allow bail to certain persons who are accused of non-bailable offences, in anticipation or in apprehension of the arrest of such accuses person.

The concept of Personal Liberty and Right to Life, combined with the Report of the 41st Law Commission, the Courts upon fulfillment of certain conditions have the duty and responsibility to grant bail, unless there is some provisional disagreement or some other bar based out of any other law in force, and/or circumstantial situations of a particular case.

This practice is in consonance with the fact that no person who is not held guilty of any crime, beyond any reasonable doubt should be confined to a jail.

The scope of Anticipatory Bail:

The scope of Anticipatory bail differs from that of regular bail as mentioned in Section 437. Therefore, the conditions laid down under Section 437 cannot be apportioned to Section 438, for arbitrarily declining the bail petition of the accused.

The scope of anticipatory bail, as envisaged under Section 438, combined with the interpretation of law laid down in the case of Gurbaksh Singh Sibbia v. State of Punjab, as well as Siddheram Satlingappa Mhetre v. State of Maharashtra, can be broken down into the following points-

  • (a) Filing of FIR is not a condition precedent to the grant of anticipatory bail

  • (b) Grant of Bail under Section 438 must be construed with the provisions of Article 21 of the Indian Constitution

  • (c) the conditions for the grant of bail laid down in Section 437 should not be read into Section 438, as it has incidence at the moment of arrest (i.e. it happens before arrest), rather than post arrest of the accused

  • (d) Orders of anticipatory bail under Section 438 cannot be construed to obstruct or hinder the investigation by the police or investigating officer in any manner whatsoever.

--------The expression “anticipatory bail” is also not defined in Cr.P.C. However, the Supreme Court in Balchand Jain v. State of M.P., has characterized anticipatory bail to mean:

"a bail in anticipation of arrest"

--------The expression is a misnomer as it represents a futility that bail may be granted by the court in apprehension of an arrest. When a competent court grants anticipatory bail”, it issues an order that in case of an arrest, the person shall be released on bail.

"Non-Bailable Offence"

Before moving on to the eligibility for an Anticipatory bail. let us also address the constituents or essentials of a Non-Bailable Offence under CrPC.

According to Section 2(a) of the Criminal Procedure Code, 1973- a non-bailable offence refers to all those offences that are not bailable under the Code. These are more heinous and serious crimes, so the quantum of punishments for these crimes are also higher.

Threatening someone with the use of force (in this image- a Gun) is a cognizable case

Bail for non-bailable offences cannot be claimed as a matter of right, as they are concerning serious crimes. Depending upon the quantum of punishment, the grant of bail can be made by the Officer-in-Charge (OC) of a police station as well, or from the Court of Session, as applicable under the Code

In the case Mansib Ali v. Irsan, the Apex Court observed that the power to grant anticipatory bail, which is only available for non-bailable offences is a discretionary power. Hence, the Court cannot freely grant bail in any and all cases, without giving due thought and deliberation to the various essentials laid down in the Code as well as other considerations as have been known to be of common morality and from precedents of authority.

Conditions for grant of an Anticipatory Bail:

Now let us move on to the various conditions antecedent to the grant of an Anticipatory Bail as per the Section 438 of the Code-

  1. Nature of the accusation i.e., how serious or heinous is the offence

  2. The criminal history of the applicant. Instances of any cognizable cases that have been tried against the applicant in such Court.

  3. Whether or not, the applicant may flee from investigation or proper procedural inquiry

  4. The court will also observe whether such accusation has been made against the applicant to hinder his reputation or defame

Having considered the above conditions, a Court processes the grant of anticipatory bail. However, along the lines, it was felt by the Apex Court, that as the number of applications for anticipatory bail were climbing and there was a surge in a number of falsifications of material facts and evidence in the case.

The Courts had to widen their net of deliberations and considerations, in order to be fairer and prevent innocent people from going through hardships of incarceration and investigative duress under police captivity.

The Guidelines for grant of an Anticipatory Bail

In pursuit of such aforementioned goals, the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra laid down the following guidelines or parameters for consideration in case of application of Anticipatory bail-

  1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.

  2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.

  3. The possibility of the applicant to flee from justice.

  4. The possibility of the accused's likelihood to repeat similar or the other offences.

  5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

  6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

  7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.

  8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.

  9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.

  10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Conditions to be followed once an Anticipatory Bail is granted

However, for availing the relief of bail under Section 438, it is pertinent, that certain conditions are also satisfied as to the existence of certain conditions or factors, which may be laid down by the Court, where the bail is preferred.

Some of those conditions are specified as such-

  • Such person shall make himself available for interrogation to further the investigation, in any reasonable way, as required by the Investigating Officer

  • Such person shall not directly or indirectly induce any threat, inducement or promise or as such to any person who is connected in any capacity with the case or with the investigation or disposal of the case, as the situation may be, that such person shall not dissuade any person from the disclosure of facts to the Court, or to the Investigating Officer.

  • Such person shall not hamper the investigation in any way, so as to defeat the ends of justice.

  • Such person shall not leave the State or country, or as the case may be without prior consent and permission of the Court and investigating officer concerned.

Recently, in the case of Rukmani Mahato v. State of Jharkhand, the Apex Court has divulged that the Courts should not grant regular bail to any person, if an order of anticipatory bail has already been granted in favor of such person, and a similar ideology has continued since the case of Gurbaksh Singh Sibbia v. State of Punjab.


The power to grant anticipatory bail has been considered in some cases, an extra-ordinary power in the hands of the judicial authorities, but it should not be taken to mean that this power shall be used in exceptional cases only.

This remedy has been provided to relieve accused persons of unlawful arrest and detention, where the detention of the accused is not absolutely essential for conducting the investigation and where the person is facing apprehension of arrest due to his position in the circumstances of the case or relations with the victim or complainant.

In Dr Subhash Kashinath Mahajan v The State of Maharashtra and Anr, it was held that the exercise of jurisdiction under Section 438 CrPC is an extremely important judicial function of a Judge, and must be entrusted to judicial officers with some experience and good track record. Both the individual and society have vital interest in orders passed by the courts in anticipatory bail applications.

As always, thank you for reading :)

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