Chapter 3

ANTICIPATORY BAIL :
A NECESSITY OR AN ANOMALY

Nature and Purpose

ONE OF the challenges that the law enforcement agencies are facing from
the human rights movement is that nobody should be confined in any way.
unless he is declared guilty. To meet such posers the bail mechanism in
India has been statutorily extended by induction into its fold a
comparatively new concept, commonly known as 'anticipatory bai 1'. Section
438 of the Criminal Procedure Code 1973 has been shaped to incorporate
this concept. It deals with a situation where a person having reasonable
apprehension that he would be arrested on an accusation of having
committed a non-bailable offence seeks to prevent his detention. Such a
person can move an application in an appropriate court. which may grant
him an anticipatory bail.
Under the Code of Criminal Procedure, 1898, there was no provision
corresponding to section 438 of the 1973 Code providing for hail in
anticipation of arrest. Anticipatory bail was, however, granted in certain
cases under the High Courts' inherent powers though the preponderant vicu
negatived the existence of any such jurisdiction.' The Law Commission i n
its 41st Report, recommended the introduction of a provision in the Code
enabling the High Court and the Court of Session to grant "anticipatory
bail". The Commission viewed that "the necessity for granthg anticipatory
bail arises mainly because sometimes influential persons try to implicate
their rivals in false cases for the purpose of disgracing them or for other
purposes by getting them detained in jail for some days. In recent times.
with the accentuation of political rivalry, this tendency is showing signs of
steady increase. Apart from false cases, where there are reasonable groiiiids
for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no justification to
require him first to submit to custody, remain in prison for some days and
then apply for bail."'
The legislative history of the provision reveals that the Joint Select
Committee of Parliament had initiated a thought that bail should be made
available in anticipation of arrest so that liberty of an individual may not be
unnecessarily jeopardised. The matter was referred to the Law Commission
for consideration about the inclusion of the remedy of grant ofanticipatoly
bail i n the Code of Criminal Procedure, 1973. The Laa. Commission \\.as
enthused to take up the suggestion. It formulated a draft provision to

I. Mattgilal 1:. State 1952 Cr.LJ 1425 (MB): State of Gujrtrr I,. ( ; u i ~ ~ r c / l t i l
Monilal Shalt. IR 1966 Guj. 146; contra. Siatc v. Kuilnslr. .41R 1953 All.
98; Stare Ottiprtrkash, 1973 Cr.LJ 824 (H&P).
13.

2. Law Commission of India, 4 / s t Repor:/ on f h r , ('ode of C ' r i u ~ i r ~ u/'rflMi/fl

l
Vol. I, p. 3 1 I ( 1969).
 30 Right to Bail

provide bail in anticipation of an arrest which ultimately got enacted as

section 438 of the code. The section reads as follows:
Section 438. Direction for grant ofbail to person apprehending arrest.
( I) When any person has reason to believe that he may be arrested
'on an accusation of having committed a non-bailable offence, he
may apply to the High Court or the Court of Session for a direction
under this section; and that Court may, if it thinks fit, direct that in
the event of such arrest, he be released on bail.
(2) When the High Court or the Court of Session makes a direction
under sub-section (I) it may include such conditions in such
directions in the light of the facts of the particular case as it may
think fit, including -
(i) a condition that the person shall make himself available
for interrogation by a police officer as and when required;
(ii) a condition that the person shall not directly or indirectly,
make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without
the previous permission of the Court;
(iv) such other condition as may be imposed under sub-
section (3) of Section 437. as if the bail were granted under that
section.
(3) If such person is thereafter arrested without warrant by an
officer in charge of a police station on such accusation, and is
prepared either at the time of arrest or at any time in the custody of
such officer to give bail, he shall be released on bail; and if a
magistrate taking cognizance of such offence decides that a warrant
should be issued in the first instance against that person. he shall
issue a bailable warrant in conformity with the direction of the court
under sub-section (I).
The principle that was being implemented through the provision of
anticipatory bail, according to one opinion, is alien to the concept and
purpose of bail because enacting such a provision in the chapter on bail has
produced difficulties. In fact, the Law Commission itself did not lay down in
"the Statute certain conditions under which alone anticipatory bail could be
granted." It said: "We found that it may not be practicable to exhaustively
enumerate those conditions; and moreover, the laying down of such
conditions may be considered as prejudging (partially at any rate) the whole
case". The task was passed on by the Law Commission to the courts with
the pious hope that the 'superior courts will. undoubtedly, exercise their
discretion properly", in the wake of such matters as the Commission
thought are being accentuated on account of political rivalries.? The
Commission, in this respect, observed :

3. 'd. para 39.9, pp. 320-21: see also the Law Commission of India, 48th Report,
para 31 (1972).
 Anticipatory Bail 31

In order to ensure that the provision is not put to abuse at the

instance of unscrupulous petitioners. the final order should be
made only after notice to the Public Prosecutor. The initial order
should only be an interm one. Further. the relevant section should
make it clear that the direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a direction is
necessary in the interests of justice. 4
Some argue that the Law Commission has perhaps based its
recommendation on a wrong formulation that the anticipatory bail could be
an answer to situations which correspond to tortious wrongs of malicious
prosecution, abuse of legal process, false imprisonment and the like. The
stunted growth of the law of torts in India having been unable to meet such
mischievous situations did call for a remedial action particularly in the wake
of accentuated political rivalry which has been "showing signs of steady
increase."! Such wrongs are being perpetrated in the society, thereby
putting an unnecessary strain on the machinery of criminal justice, besides
abusing processes of criminal law. The remedy, according to them, does not
appear to lie in the grant of bail, anticipatory or otherwise. They claim that
bail is not a remedial measure. It is an in-built mechanism of the
administration of criminal justice. Its basic purpose is to settle a custodial
arrangement between the concerned parties viz., the court and the police on
tJae one hand and the accused on the other to ensure that the person is
available to the agencies of criminal justice as and when his presence is
required for purposes of fulfilling the obligations of criminal law and justice.
Judicial Approacb
A judicial approach to the exercise of discretion has been a
cautious one. It does not and perhaps cannot, exercise the power on the
assumption that a frivolous accusation may be at the back of a proposed or
initiated criminal proceeding. The nature of accusation is likely to determine
the attitude of the court in this regard. The discretionary power is to be
exercised only after a notice to the public prosecutor is given and necessary
reasons are recorded if the court considers granting of bail is necessary in
the interests of justice.
The Patna High Court ruled that the provision be used in cases
where "the court is convinced that the person is of such a status that he
would not abscond or otherwise misuse his liberty". 6 The court further said
that even before this provision was introduced, there had been a practice in
vogue which enabled a court to release on bail such persons without a

4. Ibid.
5. Ibid.
6. Narsingh Lal Daga v. State, 1977 Cr.LJ 1776 (Pat.).
 32 Righi 10 Bail

surety or 011 their having given a personal undertaking that they would
appear before the court if required to do SO. 7
The above view is in consonance with the general judicial attitude
of taking a restrictive view of the personal liberty aspect of the matter.
Personal liberty is to be enjoyed by all and in an equal measure. It has no
relation with the status of a person as such. which the society so often
measures only in terms of his material wealth and power. The Law
Commission's criterion has been that the justification for denying personal
liberty to a person ought to lie on the apprehension of his absconding or
misusing his liberty but this approach has explicitly been qualified by the
Patna High Court when it observed:
Ordinarily, there should be a presumption in favour of every citizen
that he is not likely to abscond or otherwise misuse his liberty
while on bail. But such presumptions are generally belied and one
cannot be granted bail on that account. 8
The foregoing observations of the court need to be viewed a fresh
in the light of the views of the Law Commission, which recommended the
use of such a mechanism as a measure to promote interests of personal
liberty, and the wisdom of the legislators who formulated. debated and
passed the Bill. It is, however, not suggested that denial of this relief to the
petitioner involved in the breach of law committed under section 7 of the
Essential Commodities Act, 1955, and rule 194 of the Defence of India and
Internal Security of India Rules, 1971, had been incorrect." What is being
Said has incidentally put a dent in the basic concept of bail as the facility of
anticipatory bail being made available to economic offenders. IU The judicial
efforts have thus extended the scope of this facility to a class of persons
which were not within the purview of the Law Commission's proposal. The
Commission sought to restrict the use of anticipatory bail to frivolous cases
arising out of political rivalaries.
In an application for grant of anticipatory bail before the Punjab
and Haryana High Court, I I two influential parties were pitched against each
other, to make the contest "unnecessarily prestigious". The court was
required to intervene in the matter by way of granting bail to the members of
one party who feared arrest on the basis of a first information report which
showed that two shots were fired in the air by some unknown persons in a
meeting of a registered society. No person was found hurt as a result of the

7. /d. at 1777.
8 Ibid.
9. Bale/Wild Jain ". State of MP, 1977 Cr. LJ 225, 227, 229, 232-38 (SCl.
10..Joseph \'. Asstt. Collector of Customs, J982 Cr.Ll 559, 564 (Mad.): Suresh
, Vasudeva II. State. 1978 CLLJ. 677, 682 (Del.)
I I. Narinder Singh I'. State, 1977 o. LJ 596 (P&H),
 Anticipatory Bail 3.3

reported shooting incident and even three weeks of police investigation

could also not reveal as to who fired these shots. In such circumstances,
the court issued direction for anticipatory bail.
In Badri Prasad Pathya v. State'? the Madhya Pradesh High Court
has, however, endorsed the view that grant of anticipatory bail is mainly
meant to relieve a person from being unnecessarily deprived of liberty;
though in the instant case the consideration of high hazards of releasing the
persons alleged to be involved in a prima facie case of murder weighed with
the court in rejecting the application as against their claims for personal
liberty.
The purpose underlying section 438 of the code is to ensure that a
person anticipating arrest is not obliged to go to jail till he is able to move
the court for being released on bail. But it cannot also be construed that
such a direction should be allowed to come in the way of police
investigations nor should it seek to circumscribe police powers relating to
remand to police custody for purposes of facilitating investigation.
Accordingly, in Samabhai v, State of GUjarat,13 the court observed that a
direction for anticipatory bail would not be allowed to come in the way of a
fuller consideration of the question of custody of the person when the
investigations are incomplete. The court further said:
The order may, therefore, provide that it will exhaust itself on or will
remain operative only till the expiry of ten days from the date of the
arrest and the accused will have to obtain a fresh order in usual
course .... To avoid comphcations, instead of unlimited duration the
order may provide that it will become inoperative if no arrest is
made say within 90 days of the order. 14
A search for factors guiding the issue of directions for
anticipatory bail is continuous. Some conditions are already incorporated
in clause (2) of section 438 of the Code of Criminal Procedure, 1973. In
applying these conditions to specific situations the court may find it
convenient to take into consideration factors like, gravity of the offence,
nature of the accusation, character and antecedents of the petitioner as
well as some such other cliches as are generally found in the judicial
store-bouse and are so often relied upon. It may be said that search for
guidelines may oblige the court even to fall back upon considerations
indicated under section 437 of the Code, which provide for grant of bail in
non-bailable cases, although proceedings under section 438 for the
direction of anticipatory bail are to be invoked during the pendency of
investigation and not after it.

12. 1977 cu.r (NOC) 130 (M.P.).

13. 1977 Cr.LJ 1524 (Guj.).
14. Ibid.
34 Right 10 Bail

But the question when raised before the Karnataka High Court in
I. Y. Chand" Earappa v. Slate of Karnataka'? in terms that whether the
limitation of court's power not to grant bail to certain categories of accused
under section 437 would be applicable to its jurisdiction under section 438.
the court answering in the negative reasoned:

The foundation of the belief spoken of in S. 437 (1) by reason of

which the court cannot release the applicant on bail is, normally the
credibility of allegations contained in the F.1.R. In the majority of
cases falling under S.438, that data will be lacking for forming the
requisite belief. 16

In Balchand v, State of M. P., 17 the Supreme Court noted:

[T] he Legislature in enshrining the salutary provision in Section

438 of the Code, which applies only to non-bailable offences, was
to see that the liberty of the subject is not put in jeopardy on
frivolous grounds at the instance of unscrupulous or irresponsible
persons or officers.... 18

At the same time, the court stressed that "this being an

extraordinary power should be exercised sparingly and only in special
cases". With a view to giving effect to the above, the court further said the
rule of prudence requires that notice should be given to the other side
ltefore passing a final order of anticipatory bail, so that a wrong order of
anticipatory bail is not obtained by a party by placing incorrect or
misleading facts or suppressing material facts.'?
Anticipatory bail cannot be invoked as a matter of right. It cannot
be used to thwart investigation or to defeat an exercise of proper police
powers needed for purposes of investigation. However, when police actions
prejudicially tend to tilt the balance against a party whose personal liberty
IS likely to be jeopardised without fuller justification under the law. courts
can exercise discretion to issue a direction of anticipatory bail. This facility
remains confined to persons apprehending arrest during pendency of
investigation of non-bailable offences.
The discretionary power under section 438 of the Code is. thus. not
an exercise of independent jurisdiction. but is dependent on seriousness of

15. \989, Cr. L.J 240S (Kant.).

1(1. Ihid
17. )977Cr.LJ225(SC).
18. Id. at 234 (per Fa/al Ali, 1.)
19. Ihid.
 Anticipatory Bail 35

the accusation. For grant of anticipatory bail, the court has to be guided by
a large number of considerations, including those contained in section 437.
which deals with the bail in non-bailable cases. 20 The court cannot show
laxity in exercise of discretion for grant of bail in anticipation. It cannot be
said to be the intention of the legislature that investigation and initiation of
criminal proceedings against a person should be hustled and an escape
route be provided for persons alleged to have committed grave and heinous
crimes by securing an easy bail at a stage not yet been reopened for pre-
trial police action under the code.
In Samunder Singh v, State of Rajasthan." the Supreme Court
while commenting upon the grant of anticipatory bail to an accused in a
dowry case by the Rajasthan High Court did not approve the apathetic
manner in which the courts grant anticipatory bail in cases involving:
dowry deaths. The court made it further clear in State of M.P. v.
Ramkrishan Balathia 22 that grant of anticipatory bail is not an essential
ingredient of article 21, and its non-application to a certain special
category of offences cannot be considered as violative of that article"1
Accordingly, the Gujarat High Court in Khimiben v , State of GujaratP
deprecated the tendency of granting anticipatory bail to offenders
involved in dowry death cases and ordered cancellation of anticipatory
bait. the court was influenced by the Supreme Court ruling in Samunder
Sirjgh,24 which dressed the need for caution in granting anticipatory bail
t«persons involved in dowry death cases. The Karnataka High Court in
State of Karnataka v, Narayanappa,2S however, refused to cancel
anticipatory bail though it was granted on improper grounds, as there was
no evidence of misusing the freedom by the accused.
There are instances of wider application of section 438 and
extended exercise of jurisdiction by courts in the matters of anticipatory
bail. Both procedural and jurisdictional matters, as have been reported, need
to be taken seriously and a rethinking to be developed. The question
whether section 12-AA of the Essential Commodities Act excludes sessions
court's power to grant anticipatory bail came for consideration in Kuppa
Naidu v . State.t" wherein the Andhra Pradesh High Court held that the
sessions court was not fettered from granting anticipatory bail under the

20. G. Muthuswamy v. State of Kerala, 1980 Cr.LJ 1021. 1022 (Ker.) : Balchaud
Jain, supra note 17. but also see Gurbaksh v. State ofPunjab, 198() Cr. LJ 1125
(SC), Narsimha Roo v, State, 1997 Cr. LJ 961.
21. 1987 Cr. LJ 705 (SC)
22. 1995 Cr. LJ 2076 (SC)
23. 1992 CR.LJ 1994
24. Supra note 21
25. 1992 Cr.LJ 225
16. 1986 Cr.LJ 561
36 Right to Bail

Essential Commodities Act. It reasoned:

It is quite apparent from S.12-AA that it does not postulate
anticipatory bail at all to be granted and. therefore, the exclusion of
the powers conferred under S.438 Cr. P.C. by the special provision
under the Essential Commodities Act, does not arise. Sec. 12-AA
provides for release of persons after being apprehended of arrest.
An analogous provision is enacted under S.437 of the Cr. P.C.
Therefore, it is quite manifest that the principle of Generalia
specialibus lion derogant has no application in this case, in as
much as, there is no express provision under the Essential
Commodities Act to grant anticipatory bail. 2 7
The Karnataka High Court delivered two decisions on grant of
anticipatory bail which appear to be mutually contradictory. In Shankar
Nayak v. State of Karnataka, 28 the persons who were apprehending arrest
by forest officials. were denied anticipatory bail on the ground that
anticipatory bail was available against apprehension of arrest by police
officers and since forest officers are not police officials anticipatory bail
cannot be granted to such persons. In Gaffarsab v. State of Karnatakav"
the court granted anticipatory bail to persons apprehending arrest by forest
officials on the ground that section 104-0 of Karnataka Forest Act. 1964
prohibited release of persons only if they were in custody and since these
persons accused of minor offences were not in custody. they could be
granted anticipatory bail. It is of interest to note that these conflicting
decisions came to be rendered by the same judge in the same year.
Healthy precedent is also available which shows that the courts
have not allowed the practice of anticipatory bail to undermine the process
of justice. In a spouse murder case. viz .• Chain Singh Dhakad v.
Hargovind.t" the sessions court granted anticipatory bail on the ground
that there was no sufficient material to charge the accused under section
306 IPC. The complainant approached the High Court and contended that
the other side engaged prosecutor's son as their advocate and this had
influenced the decision. The Madhya Pradesh High Court found that there
existed material to frame charge under section 304 and keeping in view the
Supreme Court ruling 'in Samunder Singh's case," cancelled the anticipatory
bail granted to the accused.
The Orissa High Court in Mohamed Muzafar Hossain Khan v. State
of OrissaF' had to deal with the request for anticipatory bail by the
petitioner. who was twice MLA and then a minister. He went to the polling

17. Ic/ at 563

18. 199I Cr. LJ 1468 (Kant.)
19. 199 I CLLJ 2136 (Kant.)
30. 1991 Cr.LJ 33 (MP)
3 I. .....upra note 2 I
31. 1990 Cr. LJ 1024 (Ori.)
 Anticipatory Bail 37

station and on finding some disturbance. he was reported to have opened

fire. His gunman. however. said that he had opened fire. The petitioner
apprehended arrest under section 307 and sought for anticipatory bail. The
court rejected his prayer saying that investigation should not be interfered
with by grant of anticipatory bail.
The Karnataka High Court in Shekhar v . State of Ka1'll(lfaktr'"
refused anticipatory bail to the accused who were police officers involved in
a lock-up death case on the ground that it may be possible for them to
influence investigation to their advantage. Also in Baldev v. State'" and
Harshad Mehta v, Union of India,.15 no anticipatory bail was granted as it
would have affected investigation. In Ambala Punamchand Rashmwalu v.
State"; anticipatory bail was refused as non-bailable warrants had already
been issued by the concerned court.
The impropriety of the judicial officers in dealing with bail
applications was criticised by the Madras High Court in NKSM Hameed v .
Mohamed Ibrahimt", In this case the accused was granted anticipatory bail
even after arrest and submission of an application for bail. The court
observed:
The grant of anticipatory bail. in such circumstances. would lend a
helping hand to the persons accused during the course of trial to
create a cloud of suspicion about their arrest, confession.
consequent discovery of incriminating facts under section 27 of
Evidence Act. etc. and derive maximum benefit out of it. lM
Bail and anticipatory bail granted in serveral cases has, therefore.
come to be cancelled for various reasona."
However, direction not to arrest during the pendency of application
under section 438 cannot be given."o
Grant of bail is improper where evidence is available pointing out
the accused's participation in crime." However, where the accused was not
attributed with a positive role in a case of hunting black bucks under the

33. \99\ Cr.LJ \ 100

34. 1992 Cr.LJ \ 604
35. \992 Cr.LJ 4032.
36. \ 992 Cr. LJ 2373
37. 1992 Cr.LJ 227
38. /d. at 230
39. See State of Orissa v. Rajendra Prasad ( 1994) SCC 146; Stale" Miuhtvonan,
1994 Cr.Ll 279S (Mad.): Slate II. Nltin Shah. \994 Cr.Ll 2264 (Dcl.)
40. Madam Mohan Sahoo II. State of Orissa (\99S) 9 OCR 553; S/(/Ie nfHarvaua
II. Bajanlal, 1992 Cr.I..J S27; Jal/I/I Dol II. M.S. Chowdhary, 1993 Cr.LJ 600;
Mtrza Yakub Baig v. Slate of Orissa, ·1999 Cr. LJ 1S02.
41. See also C. Abdul Hameed v. Slate of Karnataka 1999 Cr.Ll 3654; Jitendra
Sil/gll I'. State 0.( Rajasthan 1999 Cr.LJ \ 58 (Raj.).
 38 Right to Bail

Wild Life Protection Act, he was granted bail by the court observing that
the positive act of wielding gun and firing shots was done only by the main
accused.f Moreover, pre-arrest bail cannot be denied on the pit-a of better
qualitative elucidation of custodial interrogation unless there is
apprehension of accused tampering with the invesugation."
For the grant of anticipatory bail, the accused must himself be the
petitioner. The Gauhati High Court rejected the application for anticipatory
bail on the ground that it was filed by the brother of the accused.v' The
person on anticipatory bail is for all practical purposes deemed to be in the
custody of the court. 4S
Whether a complainant could be heard in a case for anticipatory
bail under section 438 was answered by the Delhi High Court in the negative
in Smt. Indu Bala v. State of Delhi/" The Court explained "that the object of
the complainant would not be to see only that justice is done in a particular
case but in all probability such a complainant would be swayed with the
emotions to seek revenge or vendetta for his own satisfaction. Counsel
representing the complainant cannot be as unbiased as a public prosecutor
would be. "47
In Padmacharan Panda v. Ram Mohall Rao. 4H the Orissa High
Court ruled that an accused can be granted anticipatory bail at the stage
before the case is committed to the sessions court. At the first instance.
:the police after investigation dropped the complaint. Later. on the basis of
a protest petition an inquiry was conducted and the offences under
sections 149,324,337 and 296 IPC as well as under sections 3 and 4 of the
Explosives Act 1884, were taken cognizance of by the court. Summons
were issued and after granting bail the case proceeded. At that stage the
accused prayed for anticipatory bail and the sessions court granted the
same. The opposite party moved the High Court to get this order
cancelled. The court ruled that the order in the circumstances of the case
was valid. 4 9
The question whether the high court could grant anticipatory bail
after the trial court has taken cognizance of the offence and issued process
was dealt with in Shaik Khasim v. Statet". The Andhra Pradesh High Court
categorically ruled after examining the precedents that "the filing of a charge
sheet by the police and issuing of a warrant by the magistrate did not end

42. Salish Ravilal Shah v. State of Rajasthan 1999 Cr. LJ 727.

43. Slale of Gujrat 1'. Dipak Jasvol/tlal Sheth 1999 Cr.LJ 162.
44. Pandrb Das 1'. State of Tripura, 1999 Cr.LJ 1285 (Gau.),
45. Vinod Kumar v. State afMP, 1999 Cr.LJ 4364.
46. 199\ Cr.LJ 1774 (Del)
47. lhid.
48. 1987 Cr.LJ 923.
49. See also Sheikh Khasim v, State, 1986 Cr.LJ 1303 (AP)
50. tbid.
 Anticipatory Bail .W

the power to grant bail under section 438( I)".

The power of the sessions court and the high court to grant
anticipatory bail has been brought out in Devidas Raghu Naik v. State" I by
the Bombay High Court. In this case the appellant's prayer for anticipatory
bail was rejected by the sessions court. He, therefore, approached the High
Court with the same prayer on the same grounds. The court granted him
anticipatory bail clarifying, that there is no bar whatever for a party to
approach either the high court or the sessions court as concurrent
jurisdiction is given to the high court and the sessions court and the fact
that the sessions court has refused a bail does not operate as a bar for the
high court entertaining a similar applicatioh.V
A recent judgement in S1II1. Gatubai I'. State of Rujusthun'" is to
the effect that the grant of bail in anticipation of arrest in non-bailable
cases does not mean that the regular court which is to try the offender, is
to be bypassed. The anticipatory bail should be of limited duration only
and on the expiry of that duration the court granting anticipatory bail
should leave it to the regular court to deal with the matter on an
appreciation of evidence after investigation or submission of the
chargesheet. Further, c.H. Siva Prasad I'. State of A.p.:i4 makes it clear
that the operation of order under section 438 can be limited in time though
the power of the High Court or the sessions court is not so limited. Where
anricipatory bail is granted to the accused, normally some further time
~~mld be given to him to move to the higher court in case his application
for regular bail is rejected by the first courr." For entitlement of
alfticipatory bail there must exist reasonable apprehension or belief of
arrest and not mere suspicion, gossip or wild rumour. The apprehension
must be capable of being examined objectively. Given this situation the
jurisdiction can be invoked even in the absence of registration of the
crirne.t"
Both the High Court and the sessions court have concurrent
jurisdiction to grant anticipatory bail under section 438. An impression that
the accused should first apply to the sessions court has been disapproved
by the Andhra Pradesh High Court.t? The Patna High Court has also ruled
that anticipatory bail can be granted by a special judge appointed to deal

51. 1989 Cr.LJ 252 (Bom.)

52. Ibid.
53. 1999 Cr. LJ 1741; see also Salahuddiu Abdul Samad Sluiikh I'. State of
Maharashtra, 1996 Cr.LJ 1368; KL Verma ". State, 1996(7) SCALE (SP)
20.
54. 1999 Cr. LJ 1263
55. Supra note 45.
56. K. Rajasekhara Reddy v, State of A.P., 1999 Cr.LJ 1933.
57. Y. Chandrasekhara Rao v. Y.V Kamala Kumari, 1993 Cr.LJ 3508 (API.
 40 Right to Bail

with cases under the Prevention of Corruption Act. 5M

The question whether a High Court can grant anticipatory bail in
respect of an offence committed outside its territorial jurisdiction has been
answered differently by different high courts. The M.P. High Court after a
survey of decisions agreed'" with the Punjab and Haryana High Court and
Jammu and Kashmir High Court in Ravinder Mohan v, State of Punjab'" and
Mohall Singh v . Commander of Police" respectively which have replied it
negatively. The Court pointed out that combined reading of section 438 and
chapter XIII of the Code indicate that jurisdiction to try the accused for an
alleged offence has to be determined with reference to the area within which
the offence is committed. An application for anticipatory bail can be
entertained by the local court having jurisdiction to try the accused.
Similarly, the question whether anticipatory bail can be granted by any high
court or sessions court irrespective of the locale of the commission of the
offence came up for decision in Syed Zaful Hassan v. State. c,2 The Patna
High Court after examining the scheme of the Code and the precedents
concluded that the courts having territorial jurisdiction in respect of the
offences should have power to grant anticipatory bail.
Various questions concerning grant of anticipatory bail have been
raised time and again before the high courts in India. The citizens' urge for
keeping the freedom from police interference in their affairs makes them to
seek the help of sessions court and the high court for obtaining anticipatory
bail. Two conflicting desisions on the question of grant of anticipatory bail
are found in Jodha Ram v. State of Rajasthan'" and Harjit Singh v . Union
of India C>4 from the Rajasthan High Court and the Punjab and Haryana High
Court. The former opines that anticipatory bail can be granted by the high
court/sessions court in whose jurisdiction the applicant apprehends arrest;
the latter holds the view that the power to grant anticipatory bail vests only
in the court of session or the high court having territorial jurisdiction over
the place of commission of the offence of which the person is accused. It
may be noted that the latter's decision seems to be in conformity with the
intention of the legislature. But the reasoning of the former. is commendable.
The question whether an accused can be given anticipatory bail on
apprehension of arrest for an offence allegedly committed in Madhya
Pradesh by the Kerala High Court has been answered in the negative in T

58. In the matter of reference made by Shri Ravinandhan Shahay, Sessions Judge,
Patna, 1993 Cr.LJ 2436 (Pat.) (FB).
59. Pradeep Kumar SOli; v, State of M.P., 1990. Cr. LJ 2055 (M P)
60. 1984 Cr.LJ 714 (P&H).
61. 1983 Cr.LJ 1182 (J&K); see also infra 1I0te 62.
62. 1986 Cr.LJ 605 (FB).
63. 1994 Cr.LJ 1962 (Raj.)
64. 1994 Cr.LJ 3134 (P&H).
 Anticipatory Bail 41

Madhusoodanan v. Superintendent of Police." The court has followed the

same view in C. T. Mathur v. Go lit. of India. Home Department (eIB). h6
Judicial convenience demands that it is the court which is in seisin
of the original case has jurisdiction to grant anticipatory bail. Following this
principle the petitioner in Salauddin Abdul Samad Shaikh v. suue of
Mahurashtra'" was ordered by the Bombay High Court to approach the
appropriate court which was in seisin of the case. On challenging this order.
the Supreme Court responded:
It should be realised that an order of anticipatory b~l could even
be obtained in cases of a serious nature as for example murder and,
therefore, it is essential that the duration of that order should be
limited and ordinarily the court granting anticipatory bail should
not substitute itslef for the original court which is expected to deal
with the offence. It is that court which has then to consider
whether, having regard to the material placed before it, the accused
person is entitled to bail.6~
Suspension of Section 438
The provisions enabling sessions courts and high courts to grant
anticipatory bail to avoid harassment of individuals are sometimes
suspended to suit the needs of the system for ensuring prompt
in~stigation. In the State of Uttar Pradesh section 438 providing for
a'iiticipatory bail was repealed by the Act no. 16 of 1976. But the decision in
Df;. Vinod Kumar v. State of u.P. 69 indicates that how intolerant it is for the
general public if an existing provision is withdrawn or suspended. The
petitioners try their best either to restore it or to find new ways to achieve
the same results. In this case, in a situation where the provision for granting
anticipatory bail was withdrawn in Uttar Pradesh the petitioner argued that
the magistrate is required to dispose of the requests for bail on the day of
the arrest itself. The full bench after examining the various provisions in the
Code, concluded that if there is adequate material available the magistrate
can decide that bail application always. But the jurisdiction is exclusively of
the magistrate and it can neither be imposed nor curtailed by the high court.
other wise it will amount to infringement or interference with the authorities
exclusively vested with the magistrate/sessions judge.
The agony of the persons accused of offences, like those under
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
1989, for which anticipatory bail is not applicable is evident from cases like

65. 1992 Cr.LJ 3472.

66. 1992Cr.LJ1316.
67. 1996 sec (ci'i.) 198.
68. Id. at 199
69. 1996 Cr.LJ 307.
 42 Right to Bail

Girdhari/a/ v. State of Rajasthan.i" wherein the court felt constrained to

comment:
It is the duty of this court to see that the stringent provisions of
Section 18 of the Scheduled Castes/Scheduled Tribes (Prevention
of Atrocities) Act, 1989 are not misused. The aforesaid object can
be achieved only if judicial scrutiny is made permissible to find out
whether an offence under the aforesaid Act has been committed by
a person or a group of persons before refusing him or them, as the
case may be, the benefit of pre-arrest bail. 71
The Bar, in this case, impressed upon the court to place on record
their anxiety on which the court noted :
"After dictation of the order the learned members of the Bar present
in the Court made a request to make the order reportable. The
request is allowed and the order is made reportable. 1112
The Rajasthan High Court has, however, held that anticipatory bail
being a creature of statute could be done away with by a statute of the
Parliament and hence section 18 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 which declared section 438 not
applicable to cases coming under it, was held valid. 73
The Allahabad High Court's ruling to the effect that arrests could
be stayed and interim bail for short periods could be granted. can be
explained in the light of this position. The repealing of this provision
coupled with delay in the disposal of application for ordinary bail has made
the court to devise new modes of affording protection of liberty of the
accused.
The rationale in Issma v. State of V.P. 74 is characteristic of the
reasoning resorted to by the courts prior to the enactment of section 438.
The court observed:
Since the Courts of Magistrates and the Courts of Sessions have
jurisdiction to grant the ultimate relief of bail, they also have
jurisdiction to grant limited relief short of grant of bail in suitable
cases by way of releasing an accused on personal bond for a short
period as an ancillary or incidential relief. As soon as an accused
surrenders before a court he submits to the jurisdiction of the court
and the right of the police to arrest him does not exist thereafter.
When an accused surrenders and is released on personal bond. he
remains in the custody of the court. Release on pesonal bond is
70. 1996 Cr.LJ 1613
71. Id. at 1614.
72. Id. at 1615.
73. Ibid.
74. 1993 Cr.LJ 2432 (All.)
 Anticipatory Bail 43

nothing but a release on temporary bail. pending the final disposal

of the bail application in order to make the remedy effective and
efficacious. 75
In Haji Peer Mohamed v . State of u.e.» the court has identified
cases where interim bail could be granted. It located the power to grant
interim bail in sections 437 and 439. The court supporting its claim
observed:
"The perennial stream of writ petitions filed in this court securing
the directions, for early disposal of the bail applications lend
countenance to the grievance made by the learned counsel for the
petitioners. The right to speedy trial which includes the right to
speedy disposal of the bail matter has been held to be a part of the
right of personal liberty under Art. 21 of the Constitution.
Unfortunately we have noticed that the bail applications are not
being expeditiously disposed of by the courts below and remain
pending for a long time. "77
A Critique
The facility of anticipatory bail has won a fair legitimacy in the
criminal justice system and protection of personal liberty. but it is not taken
gladly by all. According to the contrary opinions. as pointed out earlier. the
inclusion of a provision for anticipatory bail in chapter XXXIII of the Code
~'bound to create confusion in the concept .of bail. as well as in the
apJllication of principles of bail. It would perhaps be desirable and
appropriate to insert such a provision elsewhere. It would even have been
dealt with separately to meet the type of situations referred to under that
provision, because the provision caters to an entirely different class of
persons not termed as accused and are not under arrest.
The system of bail is improvised to curtail. control and abridge the
dominion of authority over an apprehended accused. The mechanism of bail
presupposes that the person seeking bail is an accused who already has
been apprehended by police for keeping him in custody to make him appear
before the court at the required time. Once the accused is brought before
the court. police has to obtain its orders for custody of the arrested person.
Custody of the accused person can be given either to the state or to the
community. In the first situation. the accused is remanded to police or to
judicial custody as the case may be. Alternatively. he may be released on
bail at his request upon his executing a bond or may be given in the charge
of a third party coming forward as a surety and furnishing a bail bond. In

75. lei. at 2434

76. 1993 Cr.LJ 3574 (All.)
77. lei at 3575.
44 Right to Bail

latter situations the custody of the accused is deemed to have been given
to the self of the accused or to the community. Unlike an accused who is
seeking bail, a person by moving the court for anticipatory bail may not be
present before the court. He can ask for bail even ill absentia 7S because of a
likely apprehension of his arrest. Thus , the constituents of bail are
completely absent in the case of 'anticipatory bail. Hence custody of a
person seeking bail cannot be had either with the state or the community.
which makes the purpose of bail redundant.
The mechanism of bail has been contrived to meet problems of an
apprehended accused. in whose case his interim release is to be secured
with an assurance. The assurance has to be that his presence on an
appointed day before the court will be available, so that the court may
discharge its obligation of accomplishing the task to try the accused which
is incumbent upon it as the judicial process. Nothing of the above kind
exists when proceedings for anticipatory bail are invoked.
The use of bail mechanism for the purpose intended 10 be covered
by the term anticipatory bail tantamounts to misuse of the machinery of
criminal justice. In fact, the misuse of bail mechanism is a contraption to
cover entirely different situations unrelated to those arising out of the law
of arrest, investigation and trial in a criminal case. Its misuse is bound to
affect the smooth working of the system. The immediate effects arc
discernible, firstly that the time of a criminal court is exhausted 10 consider
matters which are yet to crytallise into mature criminal actions. Secondly, by
taking cognizance of such matters and bringing them within the court's
criminal jurisdiction, the authority of the investigating agency is likely to be
hampered, because the probable accused manages to secure a protecti ve
shield in the anticipation of his arrest. This paves the way for interference
by the court in the statutory jurisdiction of the police. The police has
statutory power to investigate into a cognizable offence without requiring
any instructions from a juducial authority. The anticipatory bail has a
propensity to interfere with police power and authority. It even threatens to
dismantle the utility of the well established rule laid down by the Privy
Council in King Emperor 1'. KII\\'(/za Nazir Ahl1l(uFIJ :

Just as it is essential that everyone accused of a crime should have

free access to a court of justice so that he may be duly acquitted if
found not guilty of the offence with which he is charged, so it is of
the utmost importance that the judiciary should not interfere with
the police in matters which are within their province and into which
the law imposes on them the duty to inquire.t"

7S. Sec R.L. Anand t ed.) Aiycr & Miller, 1./111 ofBails. 79-81. (Il)().~) 4th cd.
79. LR 71 1/\ 20~ (1943).
su. It!. at 204.
 Anticipatory Bail 45

The Privy Council noted that in India there is a statutory right on

the part of the police to investigate the circumstances of an alleged
cognizable crime without requiring authority from judicial authorities and
observed that, it would be an unfortunate result if it should be held possible
to interfere with those statutory rights by an exercise of the inherent
jurisdiction of the court. The functions of the judiciary and the police are
complementary and the combination of individual liberty with a due
observance of law and order is only to be obtained by leaving each to
exercise its own function."
Since the concept of anticipatory bail is intended to be a fallout of
the value of personal liberty, an added consequence would be to push the
co-equal value of security and stability to the sidelines. The provision is
thus legal anomaly in relation to the estabilished legal concept of bail. It is a
provision more readily available to the affluent but it is definitely prejudicial
to the interests of the administration of the bail process in the administration
of criminal justice system. 82
In spite of the given reservations about the anticipatory bail. there
exists another stream of thought. according to which it can be safely
observed that the anticipatory bail mechanism is a necessity. Without it
numberless persons may be made to suffer in custody just on account of
some suspicion or a false charge. Also the experiences of courts in evolving
useful precedent in matters of anticipatory bail must not be undervalued.

81. Ibid.
82. See further 154,h Report of'he Law Commission of India Oil t'PC ( 1996).