The term Anticipatory Bail Application (ABA) is nowhere defined in the
Criminal Procedure Code, 1973 (Cr. P.C), however the first mention of the said
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-Bail able 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 under Section 438 with a heading
"Direction for grant of bail to person apprehending arrest".
Bail is essentially freedom from the restriction on the liberty of an accused.
It is a temporary release of a person on some security of his appearance.
Presumption of the innocence of an accused until proven guilty is a fundamental
canon of criminal jurisprudence. The provisions of bail in the Criminal
Procedure Code, 1973 (Cr. P. C) provides substance to this principle by creating
a balance between the personal liberty of an accused and the interest of
Bail is a matter of right in Bail able offences as provided under
Section 436 of the Cr. P. C and a matter of Judicial Discretion in Non - Bail
able offences under Section 437 and 439 of Cr. P. C. Where bail under Section
436,437 and 439 can be granted only after an arrest, Section 438 provides for a
Pre - Arrest bail also commonly known as anticipatory bail. Anticipatory Bail
refers to the grant of bail in anticipation of arrest.
The concept of Anticipatory Bail gained momentum when the tendency to falsely
implicate an individual in order to injure their reputation was recognized.
There was a rise in instances, where reputed individuals were falsely implicated
by their political rivals, in order to humiliate and harass them by getting them
arrested. Personal liberty of an individual is a valued facet of his right to
life and must not be put in jeopardy.
Besides this, there are instances where an
accused is not likely to abscond to avoid trial, does not have criminal
antecedents and is not likely to tamper with evidence. The need for protecting
the liberty of such men gave birth to the concept of pre-arrest bail. The
essence of anticipatory bail is well encapsulated in the words of Y.V.
Chandrachud C.J, who observed as:
�A person who has yet to lose his freedom by being arrested asks for freedom in
the event of arrest. That is the stage at which it is imperative to protect his
freedom so to give full play to the presumption that he is innocent.�
The Law Commission in its 41st report observed:
The necessity for granting
anticipatory bail arises mainly because sometimes influential persons try to
implicate their rivals in a false case for the purpose of disgracing them or for
the purpose of getting them detained in jail for some days�.
The Supreme Court (SC) in Sushila Aggarwal v. State of NCT of Delhi (2020)
case delivered a significant verdict, ruling that no time limit can be set while
granting anticipatory Bail and it can continue even until the end of the trial.
The Court made reference of India�s freedom movement claiming that arbitrary
arrests, indefinite detentions, and lack of institutional safeguards played an
important role in rallying the people to raise the demand for Independence.
Further, the need for such provision arose because now and then prominent
persons try to accuse their rivals in false cases to disgrace them by getting
them held in jail for some days. Also if there are reasonable grounds that a
person accused of an offence has fewer chances of absconding or misusing his
liberty while he is on bail then it will not be logical to make him first submit
to custody, remain in prison for some days, and then apply for bail.
Parliament considered the recommendation and while enacting the 1973 Act, added
the provision of granting bail to a person apprehending arrest under Section
438. The intention of the legislators was not to make anticipatory bail a
"blanket protection " thus, it cannot operate in respect of an offence committed
in the future and does not permit the accused to commit further offences and
claim relief from arrest.
Further, the provisions of Section 438 cannot be invoked after the accused has
been arrested and after arrest, if he is to be released on bail then he must
seek remedy under Section 437 or 439 Cr.P.C. In the case of Bal Chander Jain vs.
State of M.P
, it was held that "Anticipatory bail"
means "bail in anticipation
and when a competent court grants anticipatory bail, an order of
releasing a person at the time of arrest is granted.
In M.P. & Anr. vs. Ram
Kishan Balothia and Anr
, the Apex Court held that Anticipatory bail was not
there as a statutory right before 1973. Therefore, it cannot be considered a
fundamental right under Article 21 of the Constitution of India.
This Paper broadly interprets the provisions of Anticipatory bail and covers all
the important Judgments related to it including the recent landmark Judgment of
Sushila Aggarwal vs State of Delhi; under which very important questions were
answered by the Constitutional Bench of the Supreme Court.
Bail and its Types
- Anticipatory Bail became part of the Cr.P.C in 1973 after the 41st Law
Commission Report (1969) recommended for the inclusion of such provision. It was
included to protect the arbitrary violation of the right to personal liberty of
- Sometimes influential persons try to implicate their rivals in false
cases for the purpose of disgracing them or for other purposes by getting
them detained in jail.
- Apart from false cases, when there are reasonable grounds for believing
that a person accused of an offence is not likely to abscond or misuse his
liberty while on Bail, then there is no need to first submit him to custody,
make him/her remain in prison and then apply for Bail. In such cases, Bail
could be granted earlier.
- As arbitrary arrests (often leading to harassment and humiliation of
citizens) continue to be a pervasive phenomenon in the country, therefore,
the protection to people should be given. And this was the underlying reason
for the enactment of Sec. 438 in the Cr.P.C, which even received the Parliamentary
acceptance as �crucial underpinning to shield individual�s personal liberty in a
free and democratic country.�
Types of Bail in India:
- Definition: Bail is the conditional/provisional release of a person held
under legal custody (in matters which are yet to be pronounced by the
Court), by undertaking a promise to appear in the Court as and when
required. It signifies a security/collateral deposited before the Court for
- In Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973)
case, the Calcutta High Court explained the principle behind giving Bail.
Decoding Section 438 through judicial interpretations
- Regular Bail:
It is a direction given by the Court (any Court within the country) to
release a person who is already under arrest and kept in police custody.
For such Bail, a person can file an application under Section 437 and
439 of the Cr.P.C.
- Interim Bail:
Bail granted for a temporary and short period by the Court till the
application seeking Anticipatory Bail or Regular Bail is pending before
- Anticipatory Bail:
A direction issued to release a person on Bail
even before the person is arrested. In this situation, there
is apprehension of arrest and the person is not arrested before the Bail
is granted. For such Bail, a person can file an application
under Section 438 of the Code of Criminal Procedure (Cr.P.C). It is issued only by the Sessions Court and High Court.
The characteristics of Section 438 rest on certain terms used in the provision
that convey the intention of the legislature and have guided the Courts in the
interpretation of the Section. A plethora of cases over the due course of time
have evolved the practice of grant of anticipatory bail by Courts. However, in Gurbaksh
Singh Sibbia v State of Punjab was the first such case wherein the Supreme Court
laid down the principles of a grant of anticipatory bail with meticulous
In Gurbaksh Singh Sibbia v State of Punjab
, grave allegations of corruption were
made against the then Minister of Irrigation and power in the Government of
Punjab. Sri Gurbaksh Singh Sibbia filed an application before the Punjab and
Haryana High Court praying for the grant of anticipatory bail which was refused
by the Court. The Court held that the power under Section 438 is extraordinary
and must be exercised sparingly in exceptional cases only.
It observed that the
applicant must make out a special case for the grant of bail under this Section.
It further observed that in case of a reasonable demand made by the
investigating agency for remand of accused in police custody, power under
Section 438 should not be exercised. The court held that in order to balance
public interest, the discretion should not be exercised by the court in serious
economic offences involving blatant corruption.
The applicant appealed against the order in the Supreme Court. A �5� Judge
Constitution bench was constituted which reversed the decision of the High Court
and laid down expansive guidelines on several crucial points, which are as
Broad Interpretation of Section 438
Section 438 is divided into 6 subsections. Section 438(1) lays down "when any
person having a reason to believe that he may get arrested for a non-bailable
offence then he can apply for anticipatory bail to the High Court or the Court
of session and it is at the discretion of the Court that whether they want to
give the bail or not". Thus, anticipatory bail is not a matter of right of the
accused as regular bail in case of bailable offence or the default bail under
Section 167(2), Cr.P.C.
In the case of Savitri Agarwal v. State of Maharashtra &
the court held that the belief of the applicant seeking anticipatory bail
must be founded on reasonable grounds and not just based on mere "fear".He must
have a reason to believe that he is likely to be arrested for a non-bailable
offence and should disclose specific events and facts which can help the Court
to judge the reasonableness of his belief.
The Parliament in 2005 has introduced amendments in Section 438 in which the
Courts are required to be more vigilant while granting any relief under this
The court shall take into consideration the following:
- The nature and gravity of the accusation
- The background of the applicant, and the fact about his previous
conviction or imprisonment for a cognizable offence.
- The likelihood of the applicant to avoid trial and flee from
Justice if bail is granted
- If the accusations made in the FIR are made to harass or
humiliate the applicant by having him arrested. By considering all
these factors the Court can either dismiss the bail application or
grant interim relief.
Further, in case the application for anticipatory bail has been rejected by the
Court or if an interim order is not granted during the pendency of the said
application, then the investigating agency to proceed with the investigation can
arrest the said applicant without a warrant. In the case of M.C Abraham and Anr
v. State of Maharashtra and Anr
, the Apex Court held that the police don't need
to arrest a person merely because his Anticipatory Bail has been rejected.
Parliament inserted Sub-Section 1(A) stating that, if the court has prima facie
found any merits in the application, and is not rejecting the relief for
anticipatory bail then the application under this section cannot be disposed of
until the Public Prosecutor is heard. Thus, a 7 days' notice shall be issued to
the Public Prosecutor and the Superintendant of Police (SP) to give reasonable
time to the prosecutor to defend the said application before it is finally
Reason to believe
The use of the term �Reason to believe� by the legislature lends credence to the
fact that the Court will grant anticipatory bail to the applicant only when he
has reason to believe that he may be arrested on the accusation of a Non - Bail
able Cognizable Offence. This reason to believe must be founded on reasonable
grounds and not mere suspicion. There must be enough substance on the grounds
that led to this belief of the applicant.
The application must set out specific
facts and events that led to the applicant forming that belief. The reasons
cannot be sham or evasive. Mere fear is not �belief�, thus a vague apprehension
that someone is going to make an accusation against him, in pursuance of which
he may be arrested, is not enough. Such belief must be founded on some tangible
grounds which the court can examine objectively.
Sub-Section 1(B) was also added which provides that the presence of the
applicant is obligatory and compulsory if the public prosecutor makes an
application before the court that his presence is required during the final
hearing of the application or at the time of passing the final order, and the
court also finds it necessary then it will allow the same. Under Section 438(2)
the High Court or the Court of Session can impose certain conditions while
granting the Anticipatory Bail; like:
- Whenever it is required the person shall be present for
interrogation by a police officer.
- He must not directly or indirectly persuade, threat or
promise to any person aware of the facts of the case to dispirit
him from disclosing such facts to the court or any police
- The accused shall not leave India without prior permission
of the court,
- The Court can impose other condition which is imposed under
Section 438(3) lays down that if such person is arrested without the
warrant by the police officer on such accusation and he is having the
anticipatory bail at the time of arrest or at any time while in the custody of
such officer then he shall be released on bail.
Further, if a Magistrate taking
cognizance of such offence and decides to issue a warrant in the first instance
against that person, then such warrant has to be a bailable warrant but if
suppose the Magistrate issued a non-bailable warrant as he did not know about
the anticipatory bail order of the accused then if the executive officer of the
court came to know about the bail order then he may convert it into bailable
warrant and will report the same to the magistrate through the police officer.
Section 438(4) states that any offence committed under Section 376(3) Section
376AB or Section 376 DB of the Indian Penal Code, 1860 which are provisions
related to rape and gang rape of minors, then the above provisions are not
Three orders which the Court can pass under Section 438
- May reject the bail,
- Give next date without an interim order;
- If the bail is rejected or the next date is given
without interim protection, the investigating officer
/police officer is open to arrest without a warrant,
May grant interim order
If interim protection is granted, the court will issue notice to the Public
Prosecutor and Superintendent of Police of not less than 7 days with the copy of
the order to hear him in open court. It is to be noted that, here the interim
protection is not the grant of anticipatory bail it means that the court is not
rejecting the bail application and before the hearing of the anticipatory bail
application it has granted interim bail to the accused.
In the case of Arnesh
Kumar v. State of Bihar
the Supreme Court held that while deciding an
anticipatory bail application for offences u/s 498A i.e cruelty on women by her
husband or any relative, it necessary that there should be a mandatory notice to
the accused to appear before the police officer u/s 41A if he is booked for
offence with punishment up to 7 years.
Section 438 of the Cr. P. C lays down the provisions on anticipatory Bail:
o Sec. 438(1): When any person anticipates that he/she may get arrested on an
accusation of having committed a Non - Bail able offence, he / she may apply to
the High Court or the Court of Session for a direction under this Section. The
Court may direct (if it thinks fit) that in the event of such arrests, he/she
shall be released on Bail even before an arrest is made without subjecting
him/her to further restraints.
o Sec. 438(2): When the High Court or the Session Court makes a direction
under Sec. 438(1), it may lay down certain conditions in the light of the facts
of the particular case, as it may think fit.
Section 438 Cr.P.C - Direction For Grant Of Bail To Person Apprehending Arrest:
In the landmark case of Gurbaksh Singh Sibbia vs. State of Punjab the Apex Court
laid down general conditions for granting anticipatory bail
- When any person has reason to believe that he may be arrested on an
accusation of having committed a Non - Bail able 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.
- 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:
- A condition that the person shall make himself available for
interrogation by a police officer as and when required
- 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
- A condition that the person shall not leave India without prior
permission of the court.
- Such other condition as may be imposed under Sub-Section (3) of section
437, as if the bail were granted under that section.
- 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, he shall be released on bail; and if a Magistrate taking cognizance of
such offence decides that a warrant should be issued 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).
- The power under section 438 is extraordinary and is to be exercised in
special cases only
- It does not grant protection on any of the offences that have yet not
been committed or that no acquisition has been leveled yet.
- That the power under section 438 is not unguided and is subject to the
limitations mentioned u/s 437.
- Apart from what has been stated in section 437, a special case is to be
made out by the accused for the grant of anticipatory bail.
- This section cannot apply when there is a possibility of collecting
incriminating material from the accused, information regarding the evidence
under section 27 of the Evidence Act and the remand of the accused under
section 167(2) is essential for the collection of relevant shreds of
- In case of offences punishable with death or imprisonment of life bail
under this section cannot be granted; unless the court at the very stage is
satisfied that such charge appears to be false or groundless.
- No anticipatory bail can be granted in case of economic offences of
In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Others
was held that the Gurubaksh Singh Judgment must be followed and anticipatory
bail can be granted for an unlimited period until the trial is completed.
The Adri Dharan Das vs State Of West Bengal
judgment held that the anticipatory bail
order shall be for a limited period after which the accused is required to
surrender and obtain regular bail was passed per incuriam; i.e without due
regards to the facts and law. Further, it was a 2 Judge bench Judgment thus it
cannot overrule Gurubaksh Singh's Judgment constituting 5 Judge bench.
Contents of Section 438:
The term anticipatory bail is nowhere used in the Cr. P. C, rather it provides
for a direction to grant bail to a person apprehending arrest. Section 438 of
Cr. P. C 1973 provides that where a person has reason to believe, that he may be
arrested on the accusation of committing a Non - Bail able Cognizable Offence,
he can apply to the Court of Session or the High Court for the grant of bail in
case of such arrest.
The Court may grant or refuse the bail after taking into consideration, among
other things, factors like; antecedent of the accused(including imprisonment
undergone on conviction in a cognizable offence),nature and gravity of offence,
possibility of fleeing from justice and the probability of accusations being
made to injure or humiliate the applicant.
The Court may also grant an interim bail to the applicant and cause a notice of
not less than seven days along with a copy of the order to be served on the
Public Prosecutor and the Superintendent of Police, in order to give a
reasonable opportunity to the Public Prosecutor to present his case when the
application is called on for final hearing by the Court.
If on an application made to Court by the Public Prosecutor in this regard, the
Court considers the presence of applicant necessary in the interest of justice
at the final hearing of the application, it shall be obligatory for him to be
present in Court.
The High Court or the Court of session in case of grant of bail to the
applicant, may include conditions in the light of facts and circumstances of
the case like; the person shall make himself available to the police officer
as and when required for the purposes of investigation, he shall not make
directly or indirectly to any person acquainted with the facts of case, any
threat, inducement or promise, in order to dissuade him from disclosing such
facts to the Court or the Police officer and that the person shall not leave
the country without permission of the Court. Further, the Court may impose
any condition as provided under Section 437 (3) of CrPc.
In the event of arrest of a person who has been granted anticipatory bail by the
court, he shall be released as soon as he is prepared to furnish bail to the
Police officer. When a Magistrate decides to issue a warrant for arrest in such
a case, a Bailable warrant shall be issued.
Exceptions to the Law
Criminal amendment bill 2018 added Clause 4 to Section 438 and created
exceptions to the law. According to the said clause, anticipatory bail cannot be
granted to a person accused of an offence of committing rape on a woman under 16
years of age, under 12 years of age, gang rape on a woman under 16 years of age
and gang rape of a woman under 12 years of age, punishable under Section 376(3),
376 AB, 376 DA and 376 DB respectively of the Indian Penal Code, 1860.
Further, Section 18 of the Scheduled Caste and Scheduled tribes (Prevention of
Atrocities Act) 1989 prevents the grant of anticipatory bail in respect of
offences committed under Section 3 of the Act.
Which Courts Have Original Jurisdiction To Entertain Anticipatory Bail Application
When a person has an apprehension or reason to believe that he may be arrested
for accusation of having committed an offence which is Non - Bail able in
nature, he may apply to High Court or Court of Sessions for direction to the
investigating agency, that in the event of arrest he shall be released on bail.
Analysis Of Section 438 Of CrPc
The section is divided into 3 Sub-Sections, which have been analyzed below:
- Sub-Section 1
According to Sub-Section 1, any person can apply for anticipatory bail if he has
a reason to believe that he may be arrested on accusation of having committed
Non - Bail able offence. Here the legislators were clear that such an
application can only be made if the offence for which the ABA is filed is a Non-Bail able Offence.
The Sub-Section 1 further provides that such an application
can only be moved before the High Court or Session Court that is empowered to
give direction to the investigating authority seeking arrest of such applicant,
to release the applicant on bail in case of arrest for nonbailable offence.
- However, the Parliament in the year 2005 brought in an amendment requiring the
courts entertaining such an application, to be more cautious while granting any
relief under this provision. The amendment brought in the list of guidelines
viz., the court shall take into consideration the gravity of offence, the courts
shall take into consideration the antecedents of the applicant and also look
into the possibility of the applicant avoiding the trial by fleeing if ABA is
granted and the court shall also consider if the accusations made in the FIR are
made with an intention to harass the applicant of ABA.
The Sub-Section (1)
further states that, in case the application for ABA has been rejected by the
concerned court or if interim relief is not granted while the pendency of the
said application then it is open for the investigating agency to arrest the said
applicant without warrant on the basis of the accusation apprehended in such
Here the legislature has given secret powers to investigating
authority to take into account the apprehension made out by the applicant and to
consider his apprehensions as alleged crime and arrest him to investigate why he
is apprehending such an arrest.
Further Sub-Section "1(A)" was added in 2005 amendment which states that in case
interim relief has been granted by the concern court then a notice shall be
issued to the Public Prosecutor and the SP/DCP which should not be less that 7
days in order to give reasonable time to prosecutor to defend the said
application before the application is finally heard.
By inserting this provision
the Parliament made it very clear that if the court is not forthwith rejecting
the relief for anticipatory bail and if the court has prima facie found any
merits in the application, then the application under this section cannot be
disposed off unless and until the Public Prosecutor is heard.
Sub-Section 1(B) was added vide the amendment of 2005 which provides that if the
public prosecutor makes an application before the court where the ABA is pending
then the presence of the applicant is required during the final hearing or at
the time of passing the final order, and if the concerned court deems it
necessary to allow the same then the presence of the applicant is obligatory and
- Sub-Section 2
This Sub-Section lays down certain conditions which need to be put on the
applicant while granting him interim protection.
- Sub-Section 3
This Sub-Section states that if the application under this provision is allowed,
and if such a person is subsequently arrested without warrant, then he should be
released on bail immediately. In case the magistrate takes cognizance and issues
warrant against such person then such a warrant shall be a Bail able warrant.
The legislature grants wide discretion to the High Court and the Sessions Court
by including the term �may, if it thinks fit� in Section 438. The Court held
that this discretion must not be narrowed down by introducing conditions into
the statute not originally found, as done by the High Court. Judicial discretion
in matters of anticipatory bail must be exercised in light of the facts and
circumstances of every individual case and by imposing conditions that the case
Generalizations of any sort like �economic offences� or �case of
blatant corruption� as made by the High Court destroy the very purpose of
discretion granted to Courts by the legislature. Thus, there can be no
straitjacket formulae for the exercise of power under Section 438. Any attempt
to lay down a cast-iron rule by making generalizations will hamper the interest
of the applicant adversely.
Balancing personal liberty and investigational powers of the Police
The Apex Court held that there is substantial public interest involved in the
investigational powers of police, but the Court must strike a balance between
the powers of the police and personal liberty of the applicant. The refusal of
bail directly affects the freedom of movement of an individual, which has been
held to be a component of Right to life under Article 21 of the Constitution of
India. Thus, it is the task of the Court to balance the two interests in the
exercise of power under Section 438.
The imposition of usual conditions on the
applicant of cooperating with the investigation agency and not tampering with
the evidence while granting an order under Section 438 will ensure uninterrupted
investigation thereby preventing the conflict in interest.
Prerequisites For Grant Of Anticipatory Bail
There are mainly 2 pre-requisites for applying for Anticipatory Bail before the
The offence against which the bail is sought should be a non-bailable offence.
There should be a grave apprehension that the accused will be arrested by the
police authorities for such a non-bailable offence.
No Anticipatory Bail after Arrest
The Court held in clear terms that provision of anticipatory bail is to grant
bail before the arrest of the applicant. Once the applicant is arrested, he can
apply for bail under Section 437 or 439 of the Cr. P. C but not under Section
Registration of FIR, not a condition precedent
The provisions of Section 438 do not require the registration of an FIR against
the applicant. The use of the terms �reason to believe� indicates that merely
reasonable grounds for the likelihood of arrest may lead the Court to grant
Considerations that needs to be kept in mind
While the Court clarified that considerations are numerous, it did prescribe a
few considerations like; the nature and seriousness of the charges, a reasonable
possibility of the applicants presence not being secured at the trial,
reasonable apprehension that witnesses will be tampered with, apprehension of
accused being capable of influencing investigation and the large interest of the
public and the state, that the court has to keep in mind while deciding a case
under Section 438.
Article 21 of the Constitution of India, 1950
Section 438 seeks to protect the personal liberty of an individual which is a
component of the right to life and liberty under Article 21 of the Constitution.
The test of fairness is implicit while invoking the powers under Section 438 and
the Courts cannot impose an unreasonable limitation on the liberty of an
individual while determining the scope of the provision. Any such limit would be
volatile of Article 21.
On-time period of bail
The Court held, it is not necessary to limit the time period of bail and usually
it should continue till the end of the trial. However, the Court may, if there
are reasons for so doing limit the time up to a reasonable period after FIR and
direct the applicant to obtain an order of bail under section 437 or 439. The
normal should be to not limit the order under section 438 in point of time.
Recent Landmark Judgments On Law Of Anticipatory Bail
No time limit could be fixed while granting Anticipatory Bail
Sushila Agarwal v. State of Delhi
The Hon'ble court was pleased to frame 2 questions while deciding the landmark
- 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 &
- 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.PC 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 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.
Not granting Anticipatory bail may cause violation of fundamental rights of an
individual under Article 21 of the Constitution of India
The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of
was pleased to hold that:
The provision of anticipatory bail enshrined
in Section 438 of the Code is conceptualised under Article 21 of the
Constitution which relates to personal liberty. Therefore, such a provision
calls for liberal interpretation of Section 438 of the Code in light of Article
21 of the Constitution. The Code explains that an anticipatory bail is a
pre-arrest legal process which directs that if the person in whose favour it is
issued is thereafter arrested on the accusation in respect of which the
direction is issued, he shall be released on bail."
The apex court while observing the above celebrates the two provisions and
related them together. The court was pleased to observe that Section 438 and
Article 21 goes hand in hand and that by enacting the provision for grant on
Anticipatory Bail the legislature has upheld the fundamental right of the
Compliance of section 41 (A) CrPc is mandatory in case of offences punishable
with maximum 7 years imprisonment
Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar
deciding an application for ABA for offences u/s 498A, felt it 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.
Rights of First Informant to intervene in Anticipatory Bail Application
The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of
held that, if victim of the offence appeared in the court seeking
permission to be heard, then opportunity of being heard is to be given to him or
However, the apex court in the case of Sundeep Kumar Bafna v. State of
, took a slightly contrary view to what we discussed above. The court
held that "The upshot of this analysis is that no vested right is granted to a
complainant or informant or aggrieved party to directly conduct a prosecution.
So far as the Magistrate is concerned, comparative latitude is given to him but
he must always bear in mind that while the prosecution must remain being robust
and comprehensive and effective it should not abandon the need to be free, fair
and diligent. So far as the Sessions Court is concerned, it is the Public
Prosecutor who must at all times remain in control of the prosecution and a
counsel of a private party can only assist the Public Prosecutor in discharging
The complainant or informant or aggrieved party may,
however, be heard at a crucial and critical juncture of the trial so that his
interests in the prosecution are not prejudiced or jeopardized.
Is it Mandatory for police to arrest a person only because his ABA is rejected?
The Hon'ble Supreme Court, in case of M.C Abraham and Anr. v. State of
Maharashtra and Anr
. has held that it is not mandatory for the police to arrest
a person merely because his/her Anticipatory Bail has been rejected.
Power under Section 438 being extraordinary in character
The Apex Court held that the conclusion of the High Court that power under
section 438 is extraordinary in nature is unjustified. The provision is
extraordinary only in the sense that usually bail is applied for under Section
437 and Section 439 of CrP.c. But that does not lead to the conclusion that
the power has to be exercised sparingly.
The Court reiterated its position that
power under Section 438 should be exercised in light of the facts and
circumstances of the specific case. As no two cases are similar, no formulae can
be derived for the grant of bail in such cases.
No Blanket Order to be issued
Section 438 does not contemplate a blanket order of anticipatory bail. The
applicant cannot be directed to be released on bail for whatever offence
whenever committed. The application must make out specific accusations against
which relief is prayed for. A blanket order without the specifying the specific
offence or offences for which bail is granted will interfere with the right of
Police to investigate the matter.
The pre-arrest bail granted in anticipation of arrest has to function like any
other order granting bail till an order of conviction or till an assenting
direction is passed under Section 439(2) Cr. In the recent landmark judgment of
the Hon'ble Supreme Court in Sushila Agarwal v. the State of Delhi
, the Apex
Court answered some crucial questions regarding anticipatory bail. The issues in
the present case were:
"Whether the protection granted to a person under
Section 438 of Cr. P.C should be limited to a fixed period to enable the person
to surrender before the trial court and seek regular bail."
"Whether the 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 unanimously held
that "there can be no time limit for the anticipatory Bail and the protection
granted to a person under Section 438 Cr.PC should not consistently be limited
to a fixed time; it should be in favor of the accused without any restraint on
Justice MR Shah added that if the circumstances demand, the conditions
can be imposed by the court when it is granting anticipatory bail order
including time limit, chiefly the stage at which:
- The anticipatory bail application is filed, whether at the stage before
the FIR is lodged
- At the stage when the FIR is already filed and the investigation is in
- At the stage when the investigation is complete and the charge sheet is
The Court's objective is to balance the two opposing interests, that is
protecting the liberty of the accused and the sovereign power of the police to
conduct a fair investigation. Thus, it has absolute discretion to direct the
duration of the anticipatory bail which can vary from a few weeks to even such
period until the charge sheet has been filed and may also extend till the end of
While answering the second question the Hon'ble court held that:
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. Further, the court can limit the term of
anticipatory bail if there are any special or peculiar features necessitating
the same". Anticipatory bail cannot end automatically.
It can only end if there
is any time limit that has been imposed by the court of sessions or High Court
while granting bail under section 438 Cr.P.C. Anticipatory Bail is not a
protection from arrest but it is a protection of the accused from custody. It is
an instrument to secure an individual's liberty; it does not give a person the
passport to commit a crime or provide a shield against any kind of accusation.
Further, there are two pre-requisites before the application for anticipatory
bailed is applied before the Court; First, The offence against which the bail is
required should be non-bailable, and Second, that the person apprehending arrest
must have a "reason to believe " about his arrest in such non-bailable offence.
Such belief must be reasonable and not just a mere fear of being arrested. Thus,
Section 438 cannot be attracted to vague allegations.
Further, the filing of FIR is not a prerequisite for the filing of an
Anticipatory bail application, and it can also be granted even after an FIR is
filed, so long as the applicant has not been arrested.
Written By: Bhaswat Prakash
, Student at Ajeenkya DY Patil University,