The right to liberty is the natural right and also the fundamental
right of an individual. However, a person has to respect the rights of others
recognized by law like the inviolability of their body and their property. When
a person is reasonably suspected to have committed an offence the machinery of
law is set in motion to arrest him and to bring him to trial and punish him
if found guilty. The act of arrest deprives a man of his liberty. Bail sets him
free on securing his promise to take trial at a future date and to undergo
punishment if found guilty.
The concept of bail flows from the right to liberty
which is sanctified as one of the fundamental rights in the Constitution of
India in Article 211 and its practice prescribed in Article22(2) as a working
theorem and its corollaries in the provisions of Sections 436, 437 and 439 of
the Code of Criminal Procedure, 1973 with a new multiple of Anticipatory Bail
thrown in to be resolved into infinite kindly factors by the developed minds of
judges imagining what the true state of facts would have been to balance for the
time being the agonies of the supposed wrong-doer and the wronged.
Commission of India in its 41streport recommended incorporating a provision for
Anticipatory Bail. Section 438 of Criminal Procedure Code dealt with the
Anticipatory Bail. This provision allows a person to seek bail in anticipation
of an arrest on accusation of non-bail able offence having committed by him. It
is a direction to release a person on bail, issued even before the person is
arrested. In this I will be dealing with Anticipatory Bail; Application for
Anticipatory Bail; Application Seeking Grant of Bail; Arrest; Pre-Arrest Bail;
Protection of Anticipatory Bail; Refusal to Bail; Resale on Bail; Scope of
Sections 167 and 438 and further the article concentrates on the power of
misusing anticipatory bail and its suggestions given by the government and
Bail means temporary release of an accused person awaiting trial,
sometimes on condition that a sum of money is lodged to guarantee their
appearance in court. In other words release or secure the release of a prisoner
on payment of bail. It may be defined as Security. Such as cash, a bond, or
property, pledged or given to a court by or on behalf of one accused of
committing a crime, to obtain release from incarceration and to ensure the
person's future appearance in court when required during the criminal
proceeding. Bail is money or some property that is deposited or pledged to a
court, in order to secure the release from custody or jail of a suspect who has
been arrested, with the understanding that the suspect will return for their
trial and required court appearances. From the above, to conclude what bail is,
as a concept in law, means an accused is granted release from custody fro
officers of the law (the police) and into the custody of a person that is
normally known to the accused as sureties.
The object of arrest and its detention of the accused person is primarily to
secure his appearance at the time of trial and to ensure that in case he is
found guilty he is available to receive the sentence. If his presence at the
trial could be reasonably ensured otherwise than by his arrest and detention, it
would be unjust and unfair to deprive the accused of his liberty during the
pendency of the criminal proceedings against him. The provisions regarding the
release of the accused person on bail are aimed at ensuring the presence of
accused at his trial but without unreasonably and unjustifiably interfering with
There is no definition of bail in the Code, although the terms
"bail able offence" and "non-bail able offence" been defined in Sec.2a of the
Code. Bail is the amount of money defendants must post to be released from
custody until their trial. Bail is not a fine. Its not supposed to be used as
punishment. The purpose of bail is simply to ensure that defendants will appear
for trial and all pretrial hearings for which they must be present. In bail, we
pay a set amount of money to obtain our release from police custody. As part of
our release, we promise to appear in court for all of our scheduled criminal
proceedings. If we show up to court as promised, bail amount will be refunded or
Types of Bail
With the Constitution of India, there is one basic rule with the law as Bail and
not Jail. Thus, everyone who is accused of an offence Civil or Criminal has a
right to apply for Bail. Only exception for it is if the said or accused is a
repeat offence maker or other is a dire possibility of the fleeing away from
justice, intimidating the witness or the crime is grave enough. Bail is the kind
of security that you provide to the law for them to release you. It is a surety
that you would be available in court as and when required in future. As
mentioned before bail is the right, its right to freedom and that must apply for
it. There are different categories of bails applicable depending upon the type
Interim Bail- is for certain period of time granted before hearing to the
Permanent Bail- permanent in nature and granted only after hearing to the
petitioner a well as the prosecution.
Bail Before Arrest- it is granted when the court feels that the accused is
falsely involved in the case and an arrest would affect his honor and dignity
Bail On Arrest under Section 497 of Cr. Pc. Bail can be granted for both bail
able as well as non bail able offences after the accused is arrested against a
Protective Bail- A bail granted so that the accused can approach the provincial
court for getting a pre-arrest bail without touching its merit.
Directly Approaching Superior Court- the Superior Courts can grant pre-arrest
bail in some appropriate cases directly if the accused has been deprived or
prevented of approaching lower courts.
Bail For The Convict- Once convicted, bail is granted to the accused even if the
appeal for the same is accepted if court finds that there are considerable
grounds for his/her release.
The concept of Anticipatory Bail comes into place when the accused may
rightfully fear arrest in cases of cognizable offences. Bail is a legal relief
that a person may be entitled to in order to get temporary freedom until his
case is disposed of. Depending on the gravity of the allegations, a person may
be able to avoid arrest altogether. However, there are cases in which arrest is
made and the accused is set free as per the provisions of the bail as given
under the Criminal Procedure Code. In cases of Criminal cases, especially those
pertaining to dowry, anticipatory bail comes as a relief to many accused person.
It is literally applied for in anticipation of arrest.
Application of Anticipatory Bail
Anticipatory bail is literally applied for ‘in anticipation of arrest'. It is a
direction to release a person on bail, issued even before the person is
arrested. If the accused has a reason to believe that he or she may be arrested
on accusation of having committed a non-bail able offence then he or she has the
right to apply for an anticipatory bail in the Sessions Court or High Court. One
may apply for anticipatory bail after learning about a criminal complaint made
against them to the police by their wife, or by any threats made by hr family
against themselves and their family. It is also important to know whether, in
cases where the FIR has been filed, the offence is bail able or non-bail able.
While in the former bail in granted as a matter of right, the grant of bail in
the latter is based on several contingencies.
The public prosecutor will talk to the police officer concerned. If there is no
FIR filed, the PP would be of the view that there were no grounds for granting
anticipatory bail. The judge will agree to this and your lawyer will be verbally
asked to withdraw the anticipatory bail. The lawyer will make an oral prayer for
seven days pre-arrest notice in case the police formulates an intention to
arrest. In all the above cases, judge will grant plea. An order will be passed
accordingly. This is called the ‘notice bail' commonly. If the bail application
is rejected in the Sessions Court then it would be applied in High Court. If the
High Court also rejects the bail, then further application on Supreme Court is
permitted. In cases when the FIR has been filed, the Investigating officer will
send a notice of arrest. As soon as that notice is received, one should apply
for anticipatory bail following the same procedure as stated above.
The High Court or Court of Session may direct that any person who has been
released on bail be arrested and commit him to custody on an application moved
by the complainant or prosecution in case any of the conditions imposed by the
Court are being violated.
Kanshi ram vs. State of Punjab
The petitioner is no longer entitled to statutory bail under Section 167(2) of
the Code of Criminal Procedure. Petitioner has filed an application for grant of
statutory bail under Section 167(2) due to default of the prosecution.
Shri Mehafuz Ali Khan vs. Cbi Police Station
Illegal and therefore, the petitioner is entitled for the statutory bail under
Section 167(2) of the Code of Criminal Procedure. Charge sheet, the petitioner
was entitled for statutory bail notwithstanding that the charge sheet came to be
Rambeer Shokeen vs. state of Nct of Delhi
Accused moved an application for grant of statutory bail under Section 167(2) of
the Code of Criminal Procedure seeking grant of statutory bail. Counsel for the
accused is directed to supply the copy of the same.
Unknown vs. State of West Bengal and Others
UAPA Act and order dated 28.6.2017 denying statutory bail to the petitioners
herein. Hence, that prayer is being incidental to the principal. Accordingly,
the petitioners had availed of statutory bail in 28.6.2016 in prior to filling
An arrest is the act of depriving people of their liberty, usually in relation
to an investigation or prevention of a crime, and thus detaining the arrested
person in a procedure as part of the criminal justice system. Police and various
other officers have powers of arrest. An arrest can be made not only by law but
also can be by any citizen who has that authority to arrest from the fact of
being a citizen. Under common law, a citizen may make an arrest for any felony
actually committed, or for a breach of the peace committed in his or her
presence. A bail been taken before arrest is known as pre-arrest bail.
Pre-arrest bail is most commonly known as anticipatory bail since it is a legal
relief in anticipation of a possible arrest. If any person apprehends that there
is a move to get him arrested on false or trump up charges, or due to enmity
with someone, or he fears that a false case is likely to be built up against
him, or becomes aware of such case being lodged against him, he has the right to
move the court of Sessions, the High Court or another court of competent
jurisdiction under Code of Criminal Procedure for grant of bail before arrest.
In case, if a person looking for immediate relief, then Aboori i.e.,
Anticipatory bail would be the first legal weapon in a court of law. Section 498
of CrPC talks the Conditions for grant of Pre-arrest Bail. The main conditions
to be satisfied before exercise of jurisdiction in pre-arrest bail under are as
• Apprehension of Imminent Arrest.
• Arrest being for ulterior motives such as humiliation and unjustified
• Irreparable injury to reputation & liberty.
• Otherwise a fit case for bail before arrest.
• Physically surrender before the court.
• Petition before Session Court.
• Motivation of police on police on political consideration.
Praveen Bhatia and Others vs. State of Punjab and Another
This case regards with grant for arrest bail in respect of non bail able
warrants issued against the petitioners in this case. They are filing the
petition for grant of pre-arrest bail as the learned Chief Judicial Magistrate,
Chandigarh has issued.
Who may be released on Bail?
The court may direct the following persons may be released on bail,
i. Any person under the age of 16.
ii. Any person above the age of 60.
iii. Any woman.
iv. Any sick of infirm person.
v. In case of further inquiry.
vi. Rule of consistency.
vii. Cross case.
Refusal to bail
A bail may be refused when there is an ‘unacceptable risk' of certain behaviors
like the accused person might not appear in court, commit further offences while
on bail. A person charged with a crime should not be denied freedom unless and
until there is a good reason. The main reason for refusing bail is that the
defendant is accused of an imprisonable offence and there are substantial
grounds for believing that the defendant would abscond.
Anticipatary Bail-438 Cr.P.C
There are many misconceptions floating around regarding Anticipatory Bail. One
such misconception is that a 498a case is an automatic arrest warrant. However,
it does not necessarily have to be so. In 498A cases, the moment you get an
anticipatory bail, the police are eliminated as a factor and you've pretty much
won the most difficult part of this fight. Another misconception is that the
filing of FIR is a must before getting Anticipatory Bail. Again, this is simply
not true. Most of the times, lawyers don't fully understand the provision of
anticipatory bail given in Section 438 of Cr. P. C. This article tries to
explain the meaning, usage, conditions applicable, regarding Anticipatory Bail
with the help of recent Supreme Court Judgments.
Anticipatory Bail In UP
Supreme Court observed the power under Art.226 is not to be
exercised liberally so as to convert it into Section 348, Cr.P.C. proceedings
in an appeal seeking the direction in the nature of Mandamus to defer the arrest
of the petitioner until collection of the credible evidence sufficient for
filing the charge sheet. Appellant, who alleged to have committed the offences
punishable under Sections 419 and 420 of Indian Pena Code had invoked the
extraordinary jurisdiction of the High Court under Article 226 of the
Constitution seeking directions to quash the FIR and to adjourn the arrest until
collection of the credible evidence sufficient for filing the charge-sheet. It
is mentioned that the remedy under S.438 Cr.P.C. in not available for him since
the section cable by the was made inapplicable by the legislature, by Section 9
of the Criminal Procedure (Uttar Pradesh) Amendment Act, 1976. The High court
dismissed the writ petition and the appellant approached Supreme Court
contending that the High Court had failed to exercise its jurisdiction under
Article 226 of the Constitution of India in not quashing the FIR and in refusing
to grant anticipatory bail to the appellant. Supreme court held that even though
Section 438 has been specifically omitted and made inapplicable in the State of
Uttar Pradesh, a party aggrieved can invoke the jurisdiction of the High Court
under Article 226 of the constitution of India, being extraordinary
jurisdiction and the vastness of the powers naturally impose considerable
responsibility in its application. But once the court finds no merits in the
challenge, writ petition will have to be dismissed and the question further
relief after dismissal of the writ does not arise. Consequently, once a writ is
dismissed, all the interim reliefs granted would also go.
Anticipatory Bail In Karnataka
Shri H D Kumaraswamy vs. State of Karnataka
In this case, hearing both sides, the Court granted interim anticipatory bail
directingthe respondent, Lokayuktha police to release the petitioner… surety as
per the terms of the interim anticipatory bail order granted by this Court.
Smt. Usha K Madalli vs. State of Karnataka
Anticipatory bail is sought by accused no.3. prosecution has filed objections
to the said bail application. An interim application on behalf of accused no3
Priyanka Angur, seeking interim anticipatory bail till the disposal of the main
Mohammed Ayub vs. State of Karnataka
Enlarge the petitioner on anticipatory bail. The respondent, police registered
the case in crime no.15/2013 on the basis of petitioner further submits that
this Court earlier granted interim anticipatory bail to the petitioner for the
period of four weeks.
Anticipatory Bail In Maharashtra
SC has expressed disapproval of the practice of trial courts giving regular bail
accused on the basis of High Courts order to grant interim anticipatory bail.
Siddharam Satlingappa Mhetre Vs state of Maharashtra
Mr. Bhushan submitted that the appellant has been implicated in a false case and
apart from that he has already joined the investigation and he is not likely to
abscond, or otherwise misuse the liberty while on bail, therefore, there was no
justification to decline anticipatory bail to the appellant.
Suresh Badrinarayan Somani Vs. The state of Maharashtra
He further submitted that even the bail can be granted in the serious offences,
if the Court is satisfied at the stage of granting anticipatory bail that such
charges appears to be false or groundless. He has further invited attention to
para 26 of the said judgement and submitted that since the denial of bail.
Bombay issued a landmark judgment that laid out guidelines to prevent the misuse
of bail by human sex trafficking perpetrators under the Immoral Trafficking
Prevention Act (ITPA). The Division Bench of Justice Roshan Dalvi and Justice
Shalini Phansalkar – Joshi passed the judgment in a Criminal Public Interest
Litigation (PIL) filed by Justice Ventures International (JVI) partner, Freedom
Firm. JVI lawyers represented Freedom Firm on the case working closely with
public prosecutors and civil society organizations throughout the proceedings.
The main refrain of the petitioner is that after the accused are released on
bail and if satisfactory the evidence would abscond. In its Judgment, the Court
observed the sorry plight of several survivors of sex trafficking who suffer
from a miscarriage of justice due to the misuse of bail provisions. In one such
case, a person accused of cruelly trafficking a 12 year old girl for sexual
exploitation, and against whom the very survivor had bravely testified,
absconded after getting bail in the final stages of the case. Since January
2010, the trial has been indefinitely stalled with the police failing to trace
the accused, while the victim still painfully awaits justice.
filed the PIL after 21 of their cases originating from the Faraskhana Police
Station, Pune were stalled on account of perpetrators who had obtained bail and
had absconded from being present at the trial. On further investigation it was
found that there are at least 42 cases from the Faraskhana Police Station alone,
where the accused disappears after obtaining bail, thereby stalling the trial.
Freedom Firm's main grievance was related to the misuse of the bail provisions
allowing those accused of offences under the ITPA to escape prosecution by
fleeing the area, depriving victims of justice and restoration. Freedom Firm and
JVI lawyers, after consulting with various stakeholders, submitted proposed
guidelines regarding bail at the High Court's request. The High Court then
circulated those guidelines among various district Magistrates. Based on the
final recommendations provided, the High Court issued new bail guidelines to
prevent the misuse of bail by human trafficking perpetrators. For example, the
Court ruled that unless exceptional, special and compelling reasons exist, bail
should be denied to repeat offenders and in cases where the victim is a minor.
In addition, bail should be denied in cases where there is evidence of violence
against the victims. The Court also set out that anticipatory bail must be
denied in ITPA Cases. Finally, the ruling spelled out restrictive conditions
that should be set where bail is, in fact, granted and ordered that legal aid
services should be provided to victims at the earliest. In conclusion, an
accused who is a trafficker in humans who has trafficked a minor or who has
absconded and is arrested or a brothel owner whose brothel has not been sealed
after due procedure cannot be granted the privilege of being released on bail.
The High Court concluded that "an accused" who is a trafficker in humans who has
criminal antecedents, has been violent as seen from the statements of the
victims of witnesses, who has no permanent local address, who is an illegal
migrant or non local resident or a foreign national on a lapsed tourist visa,
who has trafficked a minor or who has absconded and is arrested upon NBW issued,
or a brothel owner whose brothel has not been sealed after due procedure cannot
be granted the privilege of being released on bail.
"The Judgment comes at a
crucial juncture when India is reported to have the highest number of modern
slaves in the world, and where human trafficking for sexual exploitation worsens
due to ineffective systems in place. It is hoped that the implementation of the
judgment will further effective prosecution of human trafficking offenders and
enhance legal representation for survivors of human trafficking. Anticipatory
bail in Delhi. SC has expressed disapproval of the practice of trial courts
giving regular bail to accused on the basis of higher courts' order to grant
interim anticipatory bail. It has restrained subordinate courts from passing
such orders, saying that it is an abuse of the process of law. Expressing
disapproval of the practice of trial courts giving regular bail to accused on
the basis of higher courts' order to grant interim anticipatory bail, the
Supreme Court has restrained subordinate courts from passing such orders, saying
that it is an abuse of the process of law.
A bench of Justices Ranjan Gogoi and
Navin Sinha said that trial court's order granting bail to accused would
virtually make the higher court's order in fructuous if it finally decided to
withdraw the interim protection given to accused by dismissing plea for
anticipatory bail . "Once a regular bail is granted by a subordinate court on
the strength of the interim/pre-arrest bail granted by the superior court, even
if the superior court is to dismiss the plea of anticipatory bail upon fuller
consideration of the matter, the regular bail granted by the subordinate court
would continue to hold the field, rendering the ultimate rejection of the
pre-arrest bail by the superior court meaningless," the court said. The bench
passed the direction after noting that it had become a regular practice for
accused to surrender before trial court and seek regular bail just after interim
pre-arrest bail was granted by higher forums. "We have had notice of several
such cases, time has come to put the learned subordinate courts in the country
to notice that such a practice must be discontinued and consideration of regular
bail application upon surrender during the pendency of the application for
pre-arrest bail before a superior court must be discouraged," it said.
therefore, direct that a copy of this order be forwarded to the director of all
judicial academies in the country to be brought to the notice of all judicial
officers exercising criminal jurisdiction in their respective states," the court
said. The court passed the order after it was brought to its notice that a trial
court in Jharkhand granted regular bail to an accused after it granted her
interim protection from being arrested in a criminal case. The court had sought
explanation from the judicial officer who passed the order. The court, however,
let off the trial judge saying that it was a "bona fide mistake" on his part. It
quashed the bail granted to the accused and directed her to surrender before the
Anticipatory Bail In Tamil Nadu
The Madras High Court Bench here has made it mandatory for those seeking
anticipatory bail to submit sworn affidavits stating that they have not filed
similar applications either in the same court or lower courts. Justice P.R.
Shivakumar laid down the stipulation while disposing of an application filed by
an accused in a case of attempt to murder, who had obtained advance bail from a
sessions court, but did not comply with the conditions. Such suppression of
facts could not be tolerated, the judge said. "This court directs that the
office (Registry), in future, shall not number [take on file] anticipatory bail
applications without supporting affidavits."
The judge said the High Court was
accepting bail and anticipatory bail pleas and other such petitions without
affidavits only because of "representations made by the Bar." At present, it
insisted on affidavits only in writ petitions and writ appeals, among others.
Mr. Justice Shivakumar also cancelled the advance bail granted by the sessions
court to J. Saleem Kumar (32) of Kanyakumari district and directed the
Tiruvattar police to immediately arrest and remand him to judicial custody. The
petitioner, along with two others, was accused of having assaulted a mason with
a knife and stick owing to enmity. He sought anticipatory bail from the High
Court, claiming he was falsely implicated. However, during the arguments,
Government Advocate P. Rajendran brought to the court's notice that the accused
had obtained advance bail from the sessions court at Kanyakumari on January 5.
The prosecution produced a copy of the lower court order. After perusing the
order, Mr. Justice Shivakumar said: "Suppression of fact is a ground for
cancellation of anticipatory bail obtained by the petitioner."
Anticipatory Bail In Delhi
Anticipatory bail is dealt under section 438 of Cr.P.C. This appeal involves
issues of great public importance pertaining to the importance of individuals.
There are reasonable grounds for holding that person accused of an offense is
not likely to abscond, or otherwise misuse his liberty while on bail.
Avinash Vs. State
State of NCT of Delhi relied upon by learned counsel for the petitioner, in a
matrimonial dispute while granting anticipatory bail, video order dated for
interrogation by the police officers, as and when required. The ensure that the
accused does not misuse liberty by directly to any person acquainted.
Anticipatory Bail In AP
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 in the event of arrest, a person shall be released on bail. In
many cases, husbands and family members arm themselves with anticipatory bail,
even when discussions are going on between husband's and wife's families for
reconciliation for any family dispute. This vitiates the entire atmosphere
making reconciliation even more challenging. Manifestly, there is no question
of release on bail unless a person is arrested.
K. Gajendra Baidu Vs State of A.P.
The necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for certain
purpose There are reasonable grounds for holding that a person accused of an
offense is not likely to abscond or otherwise misuse his liberty while on bail.
Anticipatory Bail In Punjab
Merely because a serious Charge is added at a later stage is not by itself not a
ground to refuse anticipatory bail. SC read the judgment and thus held there
would be a liberty to move the same Court for cancellation or modifying the
conditions of anticipatory bail at any time if liberty granted by the court is
Yashpal Kaushal Vs. State of Punjab
High Court held that where there is absolutely no material to justify the
commission of an offense under the act. It would be permissible to debate the
accused from applying for anticipatory bail.
Anticipatory Bail In Kerala
The High Court of Kerala dismissed the application seeking pre-arrest bail filed
by advocate C. P.Udhayabanu who stands accused of hatching the conspiracy to
murder. A real estate broker Rajeev. The order was pronounced by Justice
Hariprasad, after Justice P. Inside revised from hearing the bail plea.
However., the Court was not much persuaded by those contentions. It was
observed that custodial interrogation of the lawyer was highly necessary for
investigation. It was also stated that power to grant pre-arrest bail under
section. 438 Cr.PC cannot be extended to freeze the investigation process.
Hence, the earlier interim order to that effect was vacated. The Court also
didn't deem it fit to grant time to Advertise, Udhayabanu to surrender before
the court or investigating officer.
Section 438 is a procedural provision which is concerned with personal liberty
of an individual, entitled to the benefit of the presumption of innocent since
he is not, on the date of his application for Anticipatory Bail, convicted of
the offence in respect of which he seeks bail. Although the power to release on
anticipatory bail can be described as of an "extraordinary" character this would
not justify the conclusion that the power must be exercised in exceptional cases
only. It is not necessary that the accused must make out a special case for the
exercise of the power to grant anticipatory bail. Thus this paper dealt with how
administration done in various States in India regards to Anticipatory Bail.