Critical Analysis of Anticipatory Bail In India
The author of this blog is Ms. Shivanshi Gupta of Institute of Law, Nirma University
Bail is an important aspect of the justice delivery system of our country. Anticipatory bail is a pertinent type of bail which is a highly controversial topic in India. The major issue about this bail is that the court by the virtue of anticipatory bail has the power to interfere in the matters of police and secondly the court has to waste their time in the matters which have not even been crystallized as a criminal offence. This blog shall throw light upon the issue by analysing the flaws and will suggest a way forward.
PROVISIONS FOR BAIL UNDER CRPC, 1973
Bail is the release of a person who
is awaiting his trial. The person has to deposit security in the name of bail
bond and it can be cash, property papers, etc.The rationale behind bail bond is
that, in case of failure of surrender by the person at the appointed time, the
bail bond is forfeited. The Criminal Procedure Code, 1973 does not define Bail
but it defines bailable offenses u/s 2
(a) as the offenses which are enlisted in the first schedule. Sections 436 to 450 mention bail and
bail bonds. Bail can be a matter of right and not of favor only in the cases of
Personal liberty is recognized as a
fundamental right by our Constitution enshrined under Article 21. Deprivation of the same is a breach of the provisions
of our Constitution, subject to certain grounds. In the case of Sanjay
Chandra vs. CBI,
the Supreme Court held that the primary purpose of bail is to relieve the
accused from imprisonment, for the ease the burden of State of keeping them
before the commencement of the trial and to make sure that the custody of the
accused is safe in a constructive manner with the court.
BAIL UNDER CRPC, 1973
Section 438 of CrPC, 1973 mentions about Anticipatory
bail. By the virtue of this provision, a person can seek bail before he is
arrested when there is an anticipation of his arrest as being an accused of a
non-bailable offense. When the court has not passed the interim order for
anticipatory bail and has rejected the same, the officer in charge has the
option of arresting the person without a warrant based on the application of
the anticipatory bail.
The concept of this bail was
interpreted with great precision after the horrors of emergency when the rich
and powerful used their power in favor. This bail is applicable only in
exceptional circumstances when the accused has substantiated the mala fide allegations on him.
The Court has to consider the
following factors while granting the anticipatory bail-
- the nature and severity of the accusations;
- History of the accused concerning the conviction
of any cognizable offense.
- chances of fleeing of the accused;
- Whether the accusations are made to injure the
reputation or humiliate the accused.
FIR is not a pre-condition for the
application of anticipatory bail.In order to fulfill the condition of
apprehension of arrest, FIR is not needed; it can be proved by invoking a
reasonable belief. Mere apprehension does not stand good; the apprehension of
arrest should be imminent, reasonable and based on existing facts. This bail
can only be claimed against a specific allegation and not on a possible or
The criminal law is based on the principle of innocent until proven
guilty; the concept of anticipatory bail is also on the same lines. This
concept tries to protect the fundamental right of liberty of a person enshrined
in Article-21 of the Constitution
but there exist many loopholes in the execution of the same provision.
When a person has an apprehension of
getting arrested and has a reason to believe the same, he can seek anticipatory
bail u/s 438 from the Sessions Court
or High Court. But when a person has absconded or he is a proclaimed offender
then he shall not begranted the anticipatory bail.This bail cannot be granted
as a matter of right as it is based on the discretion of the court.
In the case of Akhalaq Ahmed F. Patel vs. the
State of Maharashtra the court held that anticipatory bail can be
granted even after issuance of summons and thus it is not a precedent condition
that anticipatory bail should be granted before issuance of summons. Section 438 applies to all non-bailable
offenses which also cover cognizable as well as non-cognizable offenses.
The Supreme Court recently in Sushila Aggarwal vs. State (NCT of
there is no time limit fixed for the anticipatory bail and the bail can
continue till the end of the trial also. Whereas, the Supreme Court in the case
Abdul Samad Shaikh vs. State of Maharashtraheld
that the duration of anticipatory bail should be limited.
The guidelines laid down by the
court don’t prove to be enough. The courts need to take decision by considering
the social and economic condition of the accused and on the pretext of this
condition, the bail should be granted. A proper mechanism for scrutiny should
be established that has the potential to know whether the accused shall flee or
not by checking his roots in the community. As every criminal offense is
against the state, bail must balance the interest of the liberty of an
individual which is a fundamental right and the interest of the society.
The High Court and Session Court
have the power of discretion to decide whether anticipatory bail should be
granted or not. This power should be just and reasonable and not arbitrary in
nature. As the provision is widely worded, the courts should exercise it wisely
by striking the balance between the rights of the accused under Article-21.
The anticipatory bail does not
fulfill the requirements of the bail as the custody of the person is neither
with the state nor with the community, making the purpose of bail redundant.
Moreover, this provision also
hampers the working of the criminal justice system through two major reasons-
a) The court has to waste its time
and energy in the matters which are not even criminal offenses and;
b) Anticipatory bail has the propensity for
the court to interfere in the matter of the police.
Anticipatory bail is a necessary
evil that is needed in the society, but its application in the country as of
now has not evolved to emerge as a tool of acquiring justice but is used by the
affluent to their advantage. The recent judgement of the Supreme Court on
protection from arrest till the end of the trial is a way forward in the
history of anticipatory bail in India.Life and liberty is a cherished
fundamental right of the people, which should be protected by the State.Thus,
there is a need for the courts to interpret the law in a manner that fixes up
all the loopholes and leaves no scope of misuse of this provision.
1 SCC 40.
(1997) 1 CAL LT 94 (HC).
Ahmed F. Patel vs. the State of Maharashtra1998 (104) CrLJ
Sushila Aggarwal vs. State (NCT of
Delhi)2018 SCC Online SC 531.
Saluddin Abdul Samad Shaikh vs. State of Maharashtra1996 AIR 1042.