The Indian Constitution's Article 21 stipulates that everyone's life and
personal freedoms are protected. It safeguards our fundamental rights to human
dignity and personal liberty, as well as our ability to seek bail if detained by
The Code of Criminal Procedure was amended in 1973 to include Section 438, which
allows for anticipatory bail (hereinafter referred to as Cr.P.C or Criminal
Procedure Code). It is based on a suggestion made by the Law Commission of India
in its 41st report to add an anticipatory bail mechanism. "The necessity for
anticipatory bail arises primarily because powerful persons occasionally try to
implicate their competitors in criminal conduct," according to the report.
The 'Bail' provision, particularly anticipatory bail, is founded on the legal
principle of "presumption of innocence," which states that anyone suspected of
committing a crime is presumed innocent unless proven guilty. Article 11 of the
Universal Declaration of Human Rights states that this is a fundamental value.
The term 'bail' refers to the procedure of obtaining the release of an accused
person charged with a crime by securing his future appearance in court for trial
and requiring him to remain within the court's jurisdiction.
Bail is defined as "the security required by a court for the release of a
prisoner who must appear at a future time," according to Black's Law Dictionary.
The goal of an arrest is to bring justice to the accused by bringing them before
a court. However, if the same goal can be accomplished without initiating an
arrest, there is no reason to infringe on his liberty. As a result, the accused
person may be granted bail for conditional release.
The Criminal Procedure Code of 1973 does not define the term "bail." Only the
terms "Bailable Offense" and "Non-Bailable Offense" are specified in Section
2(a) of the Criminal Procedure Code. Section 436-450 of the Criminal Procedure
Code contains provisions relating to bail and bail bonds.
Bail is divided into several categories.
Offenses are divided into bailable and non-bailable categories for the
purposes of bail, as detailed below
- Offenses that are subject to bail
- According to Section 2(a) of the CrPC, a bailable offence is one that is listed
in the First Schedule of the Code or is listed in any other legislation as being
bailable. If an accused is charged with a bailable offence, he has the right to
- If the accused is willing to file bail, the police officer or any other
authority has no jurisdiction to refuse it. A person accused of a bailable
offence has the right to be released on bail at any time while under arrest
without a warrant and at any stage of the proceedings under Section 436 of the
Types of bail under Cr.P.C
The court orders that a person who has been arrested be released from police
custody after paying the bail sum. Sections 437 and 439 of the Criminal
Procedure Code allow an accused to petition for normal bail.
This is a court ruling that the accused be released on temporary and short-term
bail while his regular or anticipatory bail application is underway. In Rukmani
Mahato vs. the State of Jharkhand, the Supreme Court noted the accused's abuse
of interim bail.
A direct order from the Sessions or High Court to offer pre-arrest bail to a
criminal suspect. When a person suspects that they will be arrested, they might
petition for anticipatory bail. An application for anticipatory bail can
sometimes work against a person since it alerts an investigating agency to their
involvement in a crime.
In India, there are several important variables to examine while granting
The Supreme Court has given a lengthy and exhaustive list of grounds while
determining on anticipatory bail under Section 438(1) of the CrPC. The following
are some of them:-
Before an arrest, the gravity of the crime and the role of the accused must be
It is necessary to check the accused's previous record, as well as any
imprisonment he or she may have received following a conviction for a non-bailable
offence. Possibility of the applicant eluding justice. Possibilities of
repeating the same or similar offences. The purpose of the accusation is to harm
or humiliate the applicant by arresting him. Consider the accused's precise
involvement. There is a reasonable fear of tampering with evidence, witnesses,
or intimidating the complaint. Standard criteria apply when anticipatory bail is
granted. The accused should appear in court.
Standard criteria apply when anticipatory bail is granted
Bail is been cancelled.
- When the accused is summoned, he or she should appear before the investigation
office for questioning.
- Accused should not directly or indirectly attempt to persuade, threaten, or
promise any individual involved in the case who knows the facts of the case not
to provide the information to the court or investigative officer.
- Accused should not leave the country without the court's approval. Any
additional requirement that the court considers appropriate.
The court that granted bail can cancel it if it is judged necessary under
certain conditions, according to Section 437(5) of the CrPC The Sessions Court,
High Court, or Supreme Court can cancel the order suo moto, according to Section
Bail granted to the accused is revoked, and the accused is taken into jail. An
appellate court can also cancel the accused's bail and order that he or she be
arrested and held in custody under Section 389(2).
Anticipatory Bail and constitution of India
Every citizen in India has a fundamental right to life and personal liberty,
according to the Indian Constitution. In our Constitution, Article 21 is
incorporated. The purpose of this article is not to deprive someone of their
life or personal liberty unless they follow the legal procedure. As a person can
not prepare their case for trial from behind the bars, so the provision of bail
in law is provided, to give a fair chance to fight their case with all possible
Apart from that since an accused is considered innocent until proven
guilty, incarceration in any form brings disrepute to the person and restricts
him from going about his daily affairs. As a result, in order to avoid su with
the remedy to apply for anticipatory bail.
The Criminal Amendment Bill of 2018 added Clause 4 to Section 438. Section 438
was amended by the legislature to include four clauses. Anticipatory bail cannot
be granted to a person accused of committing rape on a woman aged under 16
years, under 12 years, gang rape on a woman aged under 16 years, and gang rape
of a woman aged under 12 years, all of which are punishable under Sections
376(3), 376 AB, 376 DA, and 376 DB of the Indian Penal Code (Punishment of Rape)
Rape is a heinous crime for which strict legal provisions should be in place to
punish the perpetrator. However, there is a distinction between being charged
and being found guilty. Because there is a good likelihood that an accused would
be exonerated following a trial, limiting the right to bail goes against the
spirit of justice. Rape is a severe crime, but nowadays people would go to any
length to defame someone in order to exact retribution, hence the number of fake
rape cases is on the rise. As a result, this provision unfairly limits the right
to obtain anticipatory bail.
The purpose of enacting Section 438 was to protect an individual's liberty.
Anticipatory bail is required when a person has grounds to suspect that he or
she will be arrested on suspicion of committing a non-bailable offence.
Anticipatory bail is concerned with a person's liberty and assumes that they are
innocent. A five-judge Supreme Court bench led by then Chief Justice Y V
Chandrachud declared in the matter of Gurbaksh Singh Sibbia vs. the State of
Punjab that Section 438 (1) must be interpreted in light of Article 21 of the
Written By: Advocate Jasdeep Kaur
: Pursuing Doctorate Of Philosophy In
Law, Ex Law Officer Women And Child Dept Govt Of Delhi NCT, Ex Panel Lawyer Govt
Of Delhi NCT, LLM University School Of Law And Legal Studies IP University
Ph no: 9821378225, Email: [email protected]