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.


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 bailable offenses.

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[1], 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.



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 general allegation.[2]

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[3]  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 Delhi)[4]held that 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 of Saluddin Abdul Samad Shaikh vs. State of Maharashtra[5]held 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]Sanjay Chandra vs. CBI(2012) 1 SCC 40.

[2]Bimaladak v. State (1997) 1 CAL LT 94 (HC).

[3]Akhalaq Ahmed F. Patel vs. the State of Maharashtra1998 (104) CrLJ 3969.

[4]Sushila Aggarwal vs. State (NCT of Delhi)2018 SCC Online SC 531.

[5]Saluddin Abdul Samad Shaikh vs. State of Maharashtra1996 AIR 1042.