Bail is defines as a conditional release of a person who has been held under legal custody, by understating a promise to be present for court dates and police interrogations when required. Bail is signified by a security or collateral deposited before the court for release.

In the case of Supt. and Rememberancer of Legal Affairs v. Amiya Kumar Roy Choudhary[i], the court explained the principle behind granting Bail. While granting Bail the Courts should keep in mind two conflicting demands. One being shielding the society from a criminal and the other being the fundamental of criminal jurisprudence i.e., innocent until proven guilty.

Types of Bail

Regular Bail: This type of Bail can be granted by any Court of India and is an order to release a person who has been arrested and is in police custody. An application to attain this Bail can be filed under Section 437[ii] and 439[iii] of CrPC.

Interim Bail: This type of bail is granted for a temporary and short period. It is granted until the application of Regular or Anticipatory Bail is pending before the court.

Anticipatory Bail: This type of bail is granted before the arrest happens. There is only an apprehension or arrest. Though the term Anticipatory Bail is not mentioned in the Code the phrase in the apprehension of arrest is used. For this type of bail an application cis filled under Sec. 438[iv] of CrPC and can only be granted by Session and High Court.

Introduction of Anticipatory Bail in India

Anticipatory Bail was introduced in 1973 on the recommendation of the 41st Law Commission Report,1969. Anticipatory Bail was introduced in order to protect the arbitrary violation of the Constitutional Right i.e., personal liberty[v]. The report intensified the need of Anticipatory Bail due to the following reasons:

In India arbitrary arrests more often than not leads to police brutality, therefore, there arises a need to protect the people. This reason has lead to the enactment of Sec. 438 of CrPC, this received the Parliamentary acceptance as a crucial step to shield individual’s personal liberty in a free and democratic country.

Offences and Anticipatory Bail

Anticipatory Bail can be granted in both cases i.e., bailable and non-bailable offences.

Bailable Offences: While for bailable offences[vi], Bail is granted as a matter of right, as these offences are not serious in nature. Some examples of these offences include Unlawful Assembly[vii], Payment of Bribe during Elections[viii], Fabrication of False Evidence[ix], Stalking[x], Criminal Defamation[xi], etc.

Non Bailable Offences: Bail in non-bailable offences[xii] is granted at the discretionary power of the Court, as these cases deal with more grave and serious offences. Some example of these offences includes: Murder[xiii], Dowry death[xiv], Rape[xv], Waging of a War[xvi], etc.

Factors for Granting Anticipatory Bail

An Anticipatory Bail is granted on the basis of several factors:

Conditions to grant Anticipatory Bail

Is Anticipatory Bail limited by time?

A long held unanswered question before the judiciary has been whether Anticipatory Bail be limited with time or not In the case of Gurbaksh Sungh Sibbia v. State of Punjab[xvii], it was held that section 438(1) should be interpreted with Article 21 of the Constitution. It was further held that it should not be limited by time. While this opinion was overruled in the case of Salauddin Abdulsamand Shaikh v. State of Maharashtra[xviii]where it was held that granting of the Anticipatory Bail is infant limited by time. Due to such a divergent approach of the Apex Court in the case of Sushila Aggarwal v. State[xix]questioned whether there is a fixed period to seek anticipatory bail. It was held that nothing in The Code of Criminal Procedure limits the Anticipatory Bail as being Time Bound.

Cases where anticipatory bail was rejected

Cancellation of Anticipatory Bail

Section 437(5) and 439 of CrPC talks about the cancellation of Anticipatory absolutely. The Court has the power to cancel Bail or to recall the Order at any given time if it deems necessary. Whereas the court does not have the power to cancel the bail granted by the Police Officer.


The concept of Anticipatory Bail was added in the Code of Criminal a Procedure as to prevent the violation of a persons Right to Personal Liberty as a test of fairness is implied while invoking Section 438 which binds the Courts to not impose any unreasonable limitation to the Personal Liberty of the accused. An exception to Personal Liberty is a procedure established by law, this bail is a device to secure an Individual’s Liberty. The Supreme Court has emphasised that Anticipatory Bail should be granted with the utmost care and it should be ensured that there should be no abuse of this special power. Further, a strike of balance between the powers of public servant and the fundamental rights of the accused be maintained. Whereas on the other hand it is a duty of  the Court to rule in the favor of betterment in the society. Crime is not committed against an individual but society at large while granting bail for serious offences it is the duty of the Court to use this power wisely and carefully.

[i] AIR (1973) SC

[ii] Section 437 of the Code Of Criminal Procedure,1973

[iii]Section 439 of the Code Of Criminal Procedure,1973

[iv] Section 438 of the Code Of Criminal Procedure,1973

[v] Article 21 of Indian Constitution, 1950

[vi] Sec 436 of the Code of Criminal Procedure, 1973

[vii] Section 144 of India Penal Code, 1860

[viii] Section 171 of Indian Penal Code, 1860

[ix] Section 192 of Indian Penal Code,1860

[x] Section 354D of India Penal Code, 1860

[xi] Section 499 of India Penal Code, 1860

[xii] Sec 438 of the Code of Criminal Procedure, 1973

[xiii] Section 302 of Indian Penal Code, 1860

[xiv] Section 304B of Indian Penal Code, 1860

[xv] Section 376 of Indian Penal Code, 1860

[xvi] Section 121 of Indian Penal Code, 1860

[xvii] AIR (1980) SC

[xviii] AIR (1995) SC

[xix] AIR (2020) SC

[xx] Samunder Singh v. state of Rajasthan (1987) 1 SCC 466

[xxi] Directorate of Enforcement v. P.V Prabhakar Rao AIR (1997) SC

[xxii] CBI v. Anil Sharma AIR (1997) SC

[xxiii] P. Chidambaram v. Directorate of Enforcement Criminal Appeal No. 1340 of 2019


Shivani Sethi, 3rd Year, BBA, LL.B (H), Banasthali Vidhyapeeth

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