Introduction – Bail System & Anticipatory Bail

Chapter XXXIII of the Code of Criminal Procedure (hereafter referred to as “the Code”) deals with provisions as to bail and bonds. The objective of the bail system is to secure the presence of accused at the trial and the question whether bail should be granted or not has to be decided, keeping in mind the probability of the accused attending his trial.

The application of bail can be filed in both bailable and non-bailable offences. In the first case, bail is a matter of right whereas in the second case it is a matter of privilege and upon the discretion of the court. Prima facie the triple test of flight risk, evidence tampering and witness influencing, in Applicant’s favour, is a prerequisite in procuring bail. The court often denies bail even if one of the ingredients of the test is against the Applicant. While deciding an application for bail, the court has to look into the following guidelines laid down in the case of Prahlad Singh Bhati v. NCT, Delhi:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • nature and gravity of the charge;
  • severity of the punishment in the event of conviction;
  • danger of accused absconding or fleeing if released on bail;
  • character, behaviour, means, position and standing of the accused;
  • likelihood of the offence being repeated;
  • reasonable apprehension of the witnesses being tampered with; and
  • danger of justice being thwarted by grant of bail.

Bail under Section 438 (the Sessions Court and the High Courts have the authority to grant anticipatory bail) of the Code is granted in anticipation of arrest and is effective at the very moment of arrest and according to the established principle, the person can not seek anticipatory bail after he has been arrested. In the case of anticipatory bail, the court has to ascertain whether there is a prima facie case against the applicant or the case is a frivolous means to embarrass and humiliate the accused. An application for pre-arrest bail could be filed before the First Information Report is registered, as soon as the circumstances indicate a clear reason for the arrest.

Sections 437(5) and 439(2) of the Code deal with the cancellation of anticipatory bail. The court which has the power to grant anticipatory bail is also under the authority to cancel the bail or recall the order related to bail.

Balance Between Liberty and Effective Investigation

The objective of including the provision in the Code was to protect the liberty of the individual and safeguard him/her from unnecessary police custody. The court should find out whether the accusation is malicious, groundless or motivated, the object being to injure and put down the accused rather than seek justice. However, at the same time, the court has to ensure that effective investigation must not be compromised, application for anticipatory bail has to be considered with extra care and caution as it has the potential to hamper the investigation. The investigation is a crucial part of the Criminal Justice System, which helps the investigating agency to collect evidence and materials necessary for proving the guilt of the accused in the trial. Hence, while considering pre-arrest bail applications the balance between the rights of the Accused and ensuring an effective investigation is important.

In a case when applicant sought anticipatory bail on parity as all the co-accused have been already released on bail, the Delhi High Court denied that applicant’s bail as the accused has neither participated in the investigation nor has attended the court once. Hence, while considering pre-arrest bail applications the balance between the rights of the accused and ensuring an effective investigation is important.

In the landmark case of Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court held that Section 438(1) of the Code should be interpreted bearing in mind the protection of life and liberty under Article 21 of the Constitution of India. The court in this case was of the opinion that the granting of anticipatory bail as a matter of right of an individual should not be limited by time. The court further added that the court granting anticipatory bail shall impose appropriate restrictions on a case to case basis.

Recent Developments on Anticipatory Bail

Manish Jain v. Haryana State Pollution Control Board

“A person released on bail is already in the constructive custody of law”.

“Recently, the Supreme Court in an order dated 20.11.20, clarified the nuances of maintainability of an anticipatory bail application. The case involved a petitioner who was granted regular bail in a prosecution under Section 15 of the Environment Protection Act, 1986. Subsequently, the bail then came to be cancelled because of non-appearance. Proceedings under Section 174A Indian Penal Code were initiated leading to his arrest following which he was released on bail. The petitioner then approached the Supreme Court thorough a special leave petition seeking anticipatory bail in accordance with the cancellation of the regular bail granted to him under Section 15 of the Environment Protection Act.

The Supreme Court observed that “a person released on bail is already in the constructive custody of law.”The court further added that if the law requires the said person to report back to the custody for specified reasons, in such cases, the application for an anticipatory bail in the apprehension of arrest will not sustain. Since the person is already in constructive custody of the law, there can not be any apprehension of the arrest.

Sushila Aggarwal v. State (NCT of Delhi)

Anticipatory bail should not be time-bound

In this case, two issues arose to be decided by the Supreme Court. Firstly, whether there should 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 and should the life of anticipatory Bail end at the time of summoning by the Court? And secondly, whether the courts can impose any conditions while granting such bail or not?

The court in its judgment dated 29.01.2020 held that no provision in the Code suggests that anticipatory bail should be time-bound. However, as per the Code, it is upon the discretion of the court (to decide as per the facts of the case) to impose time limit while granting pre-arrest bail, taking into consideration any peculiar circumstances necessitating to limit the tenure. This duration generally ends after first summoning by the court and may continue till the end of the trial period. The court (while deciding a pre-arrest bail application) may attach special features or circumstances warranting the same. And the police have the authority to reach the Court seeking permission for arrest in case of breach of such imposed conditions.

The court shall also take into consideration the seriousness and gravity of the offence (nature of the crime committed, material placed on records) while deciding such applications.

The Court further said 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.”


While taking into consideration the nuances of each case, the courts in the process of maintaining a balance between the individual’s liberty (which is the objective behind the provision of bail in the Criminal Justice System), and interests of the larger society, have tried not to turn a blind eye to the fact that the provision of anticipatory bail is utilized sparingly without compromising the investigation.

Though the provision of anticipatory bail was introduced to safeguard the liberty of individuals and protect them from arrests due frivolous and malicious FIRs, it has been widely misused in the case of economic offences. Accused persons under the garb of protection under anticipatory bail have fled the country and escaped penalties. Since economic offences form an independent class of serious offences, a separate provision must be introduced to deal with bail application related to them.

The Supreme Court, in the case of State of Rajasthan v. Balchand, declared that the rule is “Bail, not jail”. Under the Constitution of India, everyone is provided with the right to life and personal liberty. The provision of anticipatory bail, being a crucial part of the Criminal Law system, flows from Article 21 of the Constitution. With an exponential upsurge in the number of malicious prosecution cases, provisions like anticipatory bail come to the rescue for protection of rights and liberty of individuals. The Apex Court of the country in light of protection of individuals’ rights tries to strike a balance between liberty, and the efficacy of the Criminal Justice System. The courts keep a stringent approach in administering serious offences, at the same time, ensuring that no injustice is done to the accused.

About the Author: Oshi [2018-23] is pursuing B.A.L.LB (Hons.) from National University of Study and Research in Law, Ranchi.

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