Anticipatory Bail under CrPC and its Laws

16 Oct 2021  Read 13197 Views

Personal liberty is a fundamental right guaranteed by Article 21 of the Indian Constitution as a natural, vital, and essential right of individuals. This right is included in the Indian Constitution's immutable basic structure. When a person is suspected of committing a crime, the legal system is obligated to arrest them, bring them to trial, and punish them if they are found guilty. An individual's personal liberty is taken away when he is arrested, and securing bail usually sets him free. The right to personal liberty is intrinsically tied to the concept of bail. The right to secure bail stems from sections 436, 437, and 439 of the Code of Criminal Procedure, 1973 ("Code"), as well as the aspect of anticipatory bail added by the Law Commission's 41st report.


The original criminal procedure statute of 1898 did not recognise the notion of anticipatory bail. In its 41st report, dated September 24, 1969, the Law Commission of India emphasised the importance of including a provision in the Code that allows HCs and Session Courts to confer anticipatory bail to safeguard an accused or anyone who is apprehending or believes they will be arrested for a non-bailable offence.

The need for anticipatory bail emerged, according to the Law Commission, because powerful individuals tried to incriminate their rivals in bogus cases for the goal of discrediting them or for other reasons by holding them in jail for a few days. It was also noted that, as political rivalry became more prominent, the aforementioned trend appeared to be steadily increasing. The Law Commission also indicated that enumerating all of the conditions under which anticipatory bail could be granted would be impractical since it could be viewed as prejudicing the entire case. As a result, the courts were left to their own devices.

As a result, when adopting the Code, Parliament included a provision for anticipatory bail under §438, titled "Direction for grant of bail to person apprehending arrest."

Judicial Precedent – the Winding Course of the Law of Anticipatory Bail

The law on anticipatory bail has evolved in a non-linear fashion, according to a slew of SC decisions. The following instances are regarded as watershed moments in the law of anticipatory bail.

On April 9, 1980, a five-judge panel of the SC issued the first landmark ruling on anticipatory bail in Gurbaksh Singh Sibbia v. State of Punjab, which established the prevalent legislation on this matter as well as certain core principles on the idea of anticipatory bail. While considering personal liberty as a basic right under Article 21, the court stated that any provision of law dealing with an individual's personal liberty cannot be unfairly whittled down by reading restrictions into it.

Furthermore, the SC concluded that courts should avoid imposing superfluous constraints on the scope of §438 of the Code when the legislature has not done so. It held that the time for which anticipatory bail is granted should not be limited, and that one of the most important aspects of anticipatory bail is that no time-based limitation was ever statutorily contemplated, as doing so would change the concept's very foundation from one of ensuring personal liberty to one of granting contingent freedom. It further stated that courts have the authority to set restrictive conditions as they see fit, but that the seriousness and character of the proposed charges should be taken into account. 

Guiding Principles of Anticipatory Bail

The SC laid down guiding principles inter alia being that:

(i) The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence 

(ii) The HC or Sessions Court, as the case may be, must apply its own mind to the question and decide whether a case is made out for granting such a relief 

(iii) Filing a FIR is not a condition precedent to exercising power under §438.

(iv) Anticipatory bail can be granted even after a FIR is filed, as long as the applicant has not been arrested. 

(v) The provisions of §438 cannot be invoked after the accused has been arrested. 

(vi) A blanket order of anticipatory bail should not be issued. 

(vii) The normal rule should not be to limit the order's operation to a specific time period.

Time-Bound Anticipatory Bail: A Valid Principle?

In Salauddin Abdulsamad Shaikh v. State of Maharashtra, a three-judge bench of the SC took the opposite approach, holding that anticipatory bail should be time-limited because an application for unrestricted bail can only be considered once the inquiry is completed. The SC reasoned that anticipatory bail is granted when an investigation is incomplete, and hence the Court is unaware of the type of evidence against the alleged. Such orders must be of a limited length, and terminate on the expiration of original or extended period. The court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has progressed or the charge sheet has been submitted.

On two grounds, this judgment may not be said to have laid down the correct rule: (i) it failed to consider the law laid down by the Constitution bench in Sibbia and thus may be considered per-incurium; and (ii) it may not have adequately considered the scope of §438, the scrutiny permissible at the time of deciding an application thereunder. In this regard, the factors considered for grant of anticipatory bail are nearly identical to those considered when normal bail is granted.

Following that, the law on the matter shifted, and the SC, in Siddharam Satlingappa Mhetre v. State of Maharashtra, examined §438 in the context of personal liberty. While noting §438 was enacted to secure personal liberty, the Sibbia decision was not brought to the attention of the court in Salauddin, rendering it and the rulings that followed its line of reasoning invalid. Thus, In the lack of any time constraint under §438, the SC decided that the life of an order granting anticipatory bail should not be limited.

Soon after, in Sushila Aggarwal v. NCT of Delhi, a five-judge bench of the apex court overruled the aforementioned contrary judgments, including the judgment in Satligapa Mhetre, and held that anticipatory bail should not invariably be limited to a fixed period and should inure in favor of the accused without any time limit. It was further decided that the life of an anticipatory bail order does not generally expire at the time and stage when the accused is summoned or when charges are framed, but rather can continue to operate till end of trial and also has the option of limiting the time frame on discretion of court.

The Apex Court reiterated the findings and conclusion in Sibbia. It ruled that an application for anticipatory bail must be founded on actual facts related to one or more specific crimes. Nature of offense, person's role, likelihood of influencing course of the inquiry, tampering with evidence, or escaping must all be examined, and courts may impose restrictive conditions as a result. Furthermore, it was held that the police or investigating agency had the right to petition the court that granted anticipatory bail for a direction under §439 (2) to arrest accused if any of the terms were violated, and that they had the right to investigate the charges against the person who sought it.


The scope and reach of the law on anticipatory bail have been repeatedly clarified by the courts. Since 438 was included in the Code as an antidote to wrongful arrests and detentions, it is in the public interest for 438 to be construed properly under Article 21 in order to prevent arbitrary and excessive restrictions on personal liberty. The obvious ratio of Sibbia and Sushila Aggarwal appears to be consistent with the Code's intent and purpose. Personal liberty, which is at the heart of the law and important to the idea of anticipatory bail, has been studied and given fair weight by the Constitution Bench in Sushila Aggarwal.

About the Author: Sakshi Shrivastava | 15 Post(s)

Sakshi is a 3rd year student at Hidayatullah National Law University, with a keen interest in Corporate and Competition Laws. She describes herself as an extrovert known to be quite vexing!

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