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What is Anticipatory Bail? Explained

Anticipatory Bail

“In a barbaric society you can hardly ask for a bail, in civilised society you can hardly refuse it. The bail is rule and refusal is an exception.”

Black’s law dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.[1]

Section 438 of the Criminal Procedure Code, 1973 provides that when any person has reason to believe that he may be arrested on accusation of committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. Thus, the provision empowers the Court to grant bail.

But why do we have such provision of bail? The Court in Gurbaksh Singh Sibbia Etc v. State of Punjab[2] referring to the 41st Law Commission Report of 1969 pointed out the necessity of the inclusion of the provision that granting anti-bail arises because sometimes influential people try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Further, Personal liberty and the rule of law find its rightful place in the Constitution in Article 22 which includes measures against arbitrary and indefinite detention and provides that no person shall be detained beyond the maximum period prescribed by any law made by the Parliament.[3]

However, this right cannot be held absolute and is to be measured in respect of other factors. The court in Superintendent and Remembrancer of legal Affairs v. Amiya Kumar Roy Chaudhary[4] held the view that the law of bails, has to dovetail two conflicting demands, namely, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime and on the other hand the fundamental canon of the criminal jurisprudence i.e., the presumption of the innocence of the accused till he is found guilty.  In Kumari Hema Mishra v. State of UP[5], upholding the power to stay arrest under Article 226 of the Constitution the Supreme Court stated that police custody must be balanced against the duty of courts to uphold the dignity of every man and to vigilantly guard the right to liberty without jeopardizing the State objective of maintenance of law and order. It is the Court that has to maintain the equilibrium between the ‘Freedom of person’ and ‘social order’.

Various factors that the Court has to take into account while granting bail are also mentioned in the Section namely[6]:

  1. the nature and gravity of the accusation;
  2. the antecedents of the applicant including the fact as to whether he previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
  3. the possibility of the applicant to flee from justice; and
  4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

Further, some other factors are provided in Law Commission Report on anticipatory bail 2017[7]. These are:

  • Whether there are reasonable grounds for believing that he has committed the offence;
  • Severity of the potential punishment if the trial results in conviction;
  • Preponderance of evidence;
  • The character, means and standing of the accused;
  • Danger of the alleged offence continuing or being repeated if granted bail;
  • Danger of witnesses or evidence being tampered with;
  • Community ties;
  • Opportunity for the accused to prepare his defence;
  • Whether there is any possibility of the trial being delayed;
  • The health, age and sex of the accused.

Further, various conditions are provided in the Section namely that [8]

  1. when the Court grants such an interim order of anticipatory bail, it has to provide the prosecution side a reasonable opportunity of being heard 
  2. the also that the during such final hearing of anticipatory bail the accused must be present at the Court. 
  3. a condition that the person shall make himself available for interrogation by a police officer as and when required;
  4. 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 IX to any police officer;
  5. a condition that the person shall not leave India without the previous permission of the court;
  6. such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

From the above discussion, it has been clear that this power of either accepting or rejecting or making of the interim order is not an ordinary one and the Court exercises a great deal of discretion here. But, it is also often noted by the Courts that this power of discretion is to be exercised with care and circumspection depending upon circumstances justifying its exercise.


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[1] “Explained: What is an anticipatory bail, for which SC has removed time limit?” The Indian Express, 31st January, 2020.
[2] 1980 AIR 1632: 1980 SCR (3) 383.
[3] Law Commission Report
[4] ILR (1974) 1 Calcutta 304
[5] (2014) 4 SCC 453
[6] Section 438 of Criminal Procedure Code, 1973.
[8] Ibid.



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