The review of anticipatory bail under Sec 482 of Criminal Procedure Code (CrPC) has been a question arousing curiosity, demanding clarity on legal and moral grounds of the law. The Supreme Court [Ainul Hoque Molla v State of Assam] recently issued a notice to the central government upon an SLP on whether anticipatory bail orders once passed by a court can be reviewed. In another judgment, the Kerala High court, allowed recalling of the bail orders which were granted without hearing the other side, on the grounds that the basic tenets of audi altrem partem were not fulfilled. However, it is to be argued, that there exists a difference between review and recall of orders and the court has been wary of the difference while hearing the plea of anticipatory bail in this case.

Differentiating Review And Recall

It has been held in the case of Liyakat Khan v. State of UP that there is a difference between review and recall. In recall, the court does not look into the merits of the case; rather recalls an order since the other side was not heard. In a review petition, however, the court has to venture into the merits of the case and this is not permissible under Sec 362 of the CrPC. This section of the code provides that Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

The High court, however, is also given extensive powers under Sec 482 of the code. It mentions “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

What was Held in Ainul Hoque Case – Anticipatory Bail

In the present case, anticipatory bail was granted by the Guwahati High court. The court later issued a notice asking the accused why the order should not be reviewed. The court was of the opinion that the bail was erroneously granted to the accused in the previous instance and hence it was essential to review his bail order. However, the question arises- can an order of anticipatory bail once granted, be reviewed? In the referred case, the court was delving into its merits of the erroneous basis on which bail was granted and hence the article addresses the issue of the review of anticipatory bail and the conditions in which it can be allowed.

Anticipatory Bail- Purpose and Misuse

The purpose of anticipatory bail as per the law commission that recommended the inclusion of the concept in CrPC was to ensure that the accused is not at a disadvantage when a case based on malice is filed. The other reason is to protect the right to life and personal liberty of an individual as granted under Article 21 of the Indian Constitution. The court grants the bail on several considerations, which include a previous criminal record, ability to tamper with evidence, probability of appearing before the court when required etc. However, when the court decides to review its order, it decides to elicit the merits of the case which is not permitted by the Code. It is also important to note that the court cannot exercise its power under Sec 482 CrPC in an arbitrary manner. The court can only quash proceedings when not doing so will result in injustice. It was held in the case of Abdul Basit v. Abdul Kadir that bail can only be cancelled when the initial granting of bail was contrary to law. It also held, the cancellation of bail order necessitates a review of that order and hence amounts to review, which is not allowed under Sec 362 of the Code unless the initial granting was contrary to law. In the twin provisions laid down by Narinder Singh v. State of Punjab, the court can quash its proceedings when it is necessary to secure the ends of justice and to prevent the abuse of process of court. In the present case, it remains to be seen whether the court is willing to review its order on the above grounds of injustice and abuse of process. The opinion of the court to review an erroneous order amounts to looking into the merits of the case which is not tenable under sec 362. Moreover, bail is granted to secure a person his freedom, while not allowing the society to suffer. However, when a bail order is cancelled without legal justification, on the assumption that the previous order was erroneous, it acts as a Trojan horse for the cases to be heard subsequently. The precedent set by recalling a bail order on such grounds does not further the ends of justice, rather contracts them. It is equivalent to curtailing the right to life of a person, based on the assumption that the case was not heard with due merit initially. It also depicts the slack credence in the judicial proceedings.

What is the Alternative?

The code has made specific provisions for bail to be cancelled when the court feels that the accused is not abiding by the conditions on which it was granted. The courts have been given the power to cancel the bail when the accused is misusing the freedom and causing harm to society by tampering with evidence or threatening witnesses. Sec 437 (5) of CrPC states “Any Court which has released a person on bail under subsection (1) or subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.” Sec 439 (2) gives the power to the High Court to cancel bail. It states “High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” When such provisions exist there can be no reason why the court has chosen to use the provisions like 482 CrPC which have been created for situations when no other provision in the code serves as a guiding beacon and it is imperative to secure the ends of justice. Had the court felt that the accused was not a man with a clean criminal record, or was likely to tamper evidence, it should have used the provisions on tap to cancel the bail order rather than deciding to review it.


The current case only obfuscates the flummoxed law of anticipatory bail and Sec 482 by blurring the distinction between review and recall while not utilising the get-at-able provisions of cancellation of bail. The court by deciding to review the bail will only be opening a Pandora’s box where liberty of an individual could be traded for the malicious petitions and time-consuming hearings in the court that goes against the basic tenets of the philosophy of bail in India.

About the Author: Nishtha [2018-23] is pursuing B.A.LL.B(Hons) from NALSAR University of Law, Hyderabad.

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