CHAPTER-SIX

ANTICIPATORY BAIL
 CHAPTER - SIX
Anticipatory Bail

The necessity for granting 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 grounds 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.1

The use of bail mechanism has been extended further by taking into
its fold a comparatively new concept. In common parlance it is known as
anticipatory bail.2 This provision deals with a situation where a person
having reasonable apprehension that he would be arrested on an acusation
of having committed a non-bailable offence, such a person can move an
application in an appropriate court seeking the grant of anticipatory bail.
When the court grants anticipatory bail, what it does is to make an order
that in ,the event of arrest, a person shall be released on bail.

The words anticipatory bail' are neither found in S. 438 nor in its
marginal note. In fact, anticipatory bail is a misnomer as it is not bail
presently granted in anticipation of arrest. When the court grants
anticipatory bail, what it does is to make an order that in the event of arrest
a person shall be released on bail. Manifestly there is no question of release
on basil unless a person is arrested and, therefore, it is only upon arrest thatv
an order granting 'anticipatory bail' becomes operational.3 The expression
of anticipatory bail is a convenient mode of conveying that it is possible to
apply for bail in anticipation of arrest.

1 Vide Law Commission’s 41st Report, Vol. 1, pp. 320, 321, para 39.9.
2 Kelkari's Code of Criminal Procedure, p. 202.
3 Balchand Jain vs. State of M.P., 1976 4 SCC 572.
Direction for Grant of Bail to Person Apprehending Arrest
U/s 438 Cr.P.C.

438. *[(1) Where any person has reason to believe that he may be
arrested on 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 that in the event of such arrest he shall be released on bail; and that
Court may, after taking into consideration, inter alia, the following factors,
namely:—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he

has previously undergone imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii) the possibility of the applicant to free from justice, and

(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for the grant of
anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court
of Session, has not passed any interim order under this sub-section or has
rejected the application for grant of anticipatory bail, it shall be open to an
officer in-charge of a police station to arrest, without warrant, the applicant
on the basis of the accusation apprehended in such application.

(1-A,) Where the Court grants an interim order under sub-section (I,),
it shall forthwith cause a notice being not less than seven days notice,
together with a copy of such order to be served on the Public Prosecutor
and the Superintendent of Police, with a view to give the Public Prosecutor
a reasonable opportunity of being heard when the application shall be
finally heard by the Court.
 (1-B) The presence of the applicant seeking anticipatory hail shall be
obligatory at the time of final hearing of the application and passing of final
order by the Court, f on an application made to it by the Public Prosecutor,
. the Court considers such presence necessary in the interest ofjustice.]

(2) When the High Court or the Court of Session makes a direction
under subsection (1), 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;

* Substitute by the CrPC (Amendment) Act, 2005 (25 of 2005), S. 38

. (to be effective from the date of its notification). Prior to its
substitution read as under:
(1) 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 shall be released on bail.”

(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-

incharge of a police station on such accusation, and is prepared either at the
time of arrest or at any time while 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 issue in the first instance against
that person, he shall issue a bailable warrant in conformity with the
direction of the Court under sub-section (1).

I. Legislative changes.—Under the present Code this section contains

a new provision for the grant of anticipatory bail. The Law Commissioners
in 41st Report’ observed:

“39.9. The suggestion for directing the release of a person on bail prior
to his arrest (commonly known as anticipatory bail) was carefully
considered by us. Though there is conflict of judicial opinion about the
power of a Court to grant anticipatory bail, the majority view is that there is
no such power under the existing provisions of the Code.

CrPC (Anieiidnient) Act, 2005 (25 of 2005).— Sub-sec. (1) of the S.

438 has been substituted by the new sub-secs (1) (1A) and (IB). This
amendment in the section will come into force from the date of its
notification.

ILScope and application.— This is a new provision made on the

recommendation of the Law Commission. Under the old Code there was no
specific provision for grant of “anticipatory bail”. The view of several High
Courts was that unless a person was under a restraint, i.e., in legal custody,
no bail could be granted.4

The first part of the section sets out the conditions under which a person
can make an application for anticipatory bail. The second part confers
jurisdiction on the High Court or the Court of Session. Thus the second part
can be viewed as strictly jurisdictional; the High Court and the Court of

See Varkey Paily Madthikudiyil, AIR 1967 Ker 189; Narayen Prasad) AIR 1963
MP 276.
Session have concurrent jurisdiction. Once a Court is invested with
jurisdiction, that jurisdiction subsists all along unless taken away expressly
or by implication. There are no express words in the section itself,
indicating that the jurisdiction is taken away under any circumstances. It
does not appear that by implication even the jurisdiction of either of the
Courts is taken away or put an end to. It seems that the Legislators did not
intend to exclude the one or the other of the two Courts-the High Court or
the Court of Session. Had it been so intended, the legislators would have
taken care to express that clearly, as they have done in subsection (3) of
Section 397 or sub-section (3) of Section 399 Anticipatory bail cannot be
claimed as a matter of right, it is essentially a statutory right conferred long
after the coming into force of the Constitution- It is not an essential
ingredient of Art. 21 of the Constitution.5

Sub-section (1) of S. 438 has been extensively amended by the CrPC

(Amendment) Act, 2005 (25 of 2005), old sub-sec (1) has been substituted
by new sub-secs (1), (1A) and (IB), the guiding factors for grant of bail have
been mentioned in the sub-sec (I), itself. If the Court does not reject the
application for the grant of anticipatory bail, and makes an interim order of
bail, it should, forthwith give notice to the Public Prosecutor and
Superintendent of Police and the question of bail would be re-examined in
the light of the respective contentions of the parties; and (iii) the presence
of the person seeking anticipatory bail in the Court should be made
mandatory at the time of hearing of the application for the grant of
anticipatory bail subject to certain exceptions. The Court would grant or
refuse anticipatory bail after taking into considering the following factors,
namely:—

(i) The nature and gravity of the accusation;

(ii) The antecedents of the applicant including the fact as to

whether the accused has previously undergone
imprisonment on conviction by a Court in respect of any
5
State ofMP. v. R.K. Balothia, 1995 Cr. LJ 2076 AIR 1995 SC 1198 (1995) 3 SCC
221 :1995 SCC (Cri) 439.
 cognizable offence.

(iii) The possibility of the applicant to flee from justice; and

(iv) Where the accusation has been made with the object of
injuring or humiliating the applicant by having him so
arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail. This
amendment in the section will come into force from the date
of its notification.

The considerations that weigh with the Court in dealing with

applications under this section are similar to applications under S. 437 and
S. 439. But the nature of the offence is given primary consideration. The
guiding principle is that if the Court can safely opine that if allowed to be
free the accused would be wholly indifferent towards the investigation as
he need not at all be afraid of the result of the investigation and the trial, the
Court can refuse the application.0 When the conduct of the person seeking
anticipatory bail was not inspiring confidence and no attempt to involve in
false case to disgrace or malgin is made out, investigation to unearth the
conspiracy was pending, it cannot be held that exceptional and special
grounds justifying anticipatory bail were made out.7

Allegations of a non-bailable offence against a person and his

apprehension that he would be arrested is not sufficient to grant
anticipatory bail. Where in the petitions for anticipatory bail of the accused
persons not a whisper has been made to draw an inference that the object
with which power to grant anticipatory bail has been provided in this
section is satisfied the Sessions Judge has not applied judicial mind in
granting anticipatory bail which tends towards abuse of process of the
Court, it is liable to be vacated.8 Investigation officer was keen to arrest the
accused for three months but collecting materials; grant of anticipatoiy bail

K. Naroyana Sivan' v. Stale of A.P., 1980 Cr. LJ 588 (AP).

Kasturchand Ramlal v. State of Maharashtra, 1981 Cr. LJ 1328 (Born).
Suresh Chandra Gin v. State of Onissa, 1988 (3) Crimes 428, 429 (On).
at that stage after the officer has collected some evidence, is not proper.9

When the accused is admittedly involved in the offence and when police
want the accused for investigation application may be rejected.10

This is an exceptional power and should be exercised only in

exceptional cases and not in general cases. The consideration governing
exercise of discretion for granting anticipatory bail are materially different
from those of an application for bail.11 Anticipatory is not to be granted as a

matter of rule, should be granted only when a special case is made out and
the Court is convinced that the person is of such a status that he would not
misuse his liberty. The power of anticipatory bail being of extraordinary
nature should be exercised only in exceptional cases. If a case for
anticipatory bail is made out, it should not be refused merely because the
accused is required in police custody for interrogation.14 The wide powers
conferred to the higher Courts under Section 438(1) cannot be invoked on
the basis of general allegations. The judicial discretion conferred must be
properly exercised after proper application of mind to decide whether it is a
fit case for granting anticipatory bail or not.15

If at the stage of grant or refusal of anticipatory bail certain aspects of

the case are considered but later if the investigating agency files report
under S. 169, CrPC, such a step would not amount to interference with the
administration ofjustice.16

III. Object.— The purpose of this section inter aia appears to be to

secure that a person anticipating arrest is not obliged to go to jail till he is

State v. Yoginder Kuniar, 1985 Cr. LJ 685 (Del).

Madan Kashinath Anionkar v. State, 1988 (1) Crimes 461 (Bom).
Md. Abdul Sattar v. State ofAssam, 1986 (1) Crimes 263,265 (Gau); Lila Rain L.
Revani v. R.D. Gandhi 1998 Cr. LJ 14(15) (Gui); Adni Dharan Das v. State of
West Bengal, 2005 Cr. LJ 1706 (SC).
Lilarani L. Revani v. R.D. Gandhi, 1998 Cr. LJ 14(15) (Guj).
Sin Krishna Das v. State of Hatyana, 2000 (2) Crimes 529 (P&H).-
Sin Krishna Das v. State of Hatyana, 2000 (2) Crimes 529 (P&H).
Natturasu v. State, 1998 Cr. LJ 1762 (Mad).
Satish Shanmna v. State ofGujanat, AIR 2003 SC 648 : (2002) 10 SCC 323 :
2003(1) Crimes 201 (203) (SC).
able to move the Court for being released on bail,17 to relieve a Person from
unnecessary apprehension or disgrace.18 When the Court grants anticipatory
bail, what it does is to make an order that in the event of arrest, a person
shall be released on bail. Manifestly there is no question of release on bail
unless a person is arrested and, therefore, it is only on arrest that the order
granting anticipatory bail becomes operative. The object which is sought to
be achieved by this section is that the moment a person is arrested, if he has
already obtained an order from the Sessions Judge or the High Court, he
would be released immediately without having to undergo the rigor oijail
even for a few days which would necessarily be taken up if he has to apply
for bail after arrest.19

In respect of non-bailable offences, all the conditions imposed by S.

437 are implicitly contained in this section, as well. In order successfully
invoke the jurisdiction under this section apart from satisfying the
conditions under S. 437, the applicant must, in addition make out a special
case for securing an order of anticipatory bail which is of an exceptional
type. He must prove that the charge levelled against him is mala fide and
stems from ulterior motive. It is for the applicant to prima facie substantiate
his allegation that the charge of serious non-bailable offence against him
has been levelled rnaha fide20 Consideration for grant of anticipatory bail is
the same as that of under S. 437 or S. 439

IV. S. 438 not substantially different from S. 439.— There is no

substantial difference between Section 438 and Section 439 as regards the
appreciation of the case as to whether or not a bail is to be granted. The
principles that govern Section 439 as regards the maintainability of the
application are also attracted to an application under this section.21

Somabhai v. Stale of Gidanat, 1977 Cr. LJ 1523 (Guj); Natlunasu v. State, 1998
Cr. LJ 1762 (Mad).
Lilanani L. Rsvani v. R.D. Gandhi, 1998 Cr. LJ 14(15) (Guj).
Ba/chandJain v. State ofM.P., AIR 1977 SC 366 (1977) 2 SCR 52:1977 Cr. LJ
225; Thaniel Victon v. State, 1991 (I) Crimes 354,359 (Mad).
Mathanthagouda v. State of Kannataka, 1978 Cr. LJ 1045 (Kant).
Rama Swanoop v. State (Delhi Adrnn), 1986 Cr. LJ 526.
 V. Not controlled by S. 437.— The section is not controlled by the
limitations imposed under S. 437(1). The power to grant anticipatory bail is
not circumscribed by limitations imposed by S. 437(1). Ss. 437 and 438
have independent fields, S. 438 is not of universal application and has
restricted field, if it does not give any discretion to the Court to enlarge a
person on anticipatory bail, if which is available under S. 437

VII. S. 167 cannot override this provision.— The provisions of S.

167 relating to police custody of accused for the purposes of investigation
cannot prevail over the provisions relating to anticipatory bail.22

VIII. Who can apply for anticipatory bail?— A person

“apprehending arrest by Magistrate for remanding him to custody under S.
209 can apply for anticipatory bail under Section 438.23 Where the accused
apprehends arrest in view of the fact that a non-ba.ilable warrant has been
issued against him on the basis of charge-sheet filed against him, he can
apply for anticipatory bail.24

A person already on bail anticipatory bail cannot apply afresh for bail
anticipatory bail in respect of the same accusation.25 “He” in the expression
“he may apply to Court” occurring in S. 438 does not include a stranger or
a tadhirkan or a tout or a middleman.26 Hence a ladhinkar or an agent

cannot affirm an affidavit in support of an application for anticipatory

bail.27

IX. Operation of the order.— The operation of the order passed under
sub-section (1) should not be limited in point of time.28 Anticipatory bail
once granted must be held to be operative till the conclusion of the trial,

Bimaladak v. State, 1997 Cr. LJ 1969 (DB).

Jagamathv. State of Mahanashtna, 1981 Cr. LJ 1808 (Bom).
Nattunasu v. State, 1998 Cr. LJ 1762 (Mad).
Nattunasu v. State, 1998 Cr. LJ 1762 (Mad).
In the matter of: Bonneswan Dutta, 1998 Cr. LJ 1383 (Cal-DB).
In the matter of: Bonneswan Dutta, 1998 Cr. LJ 1383 (1388) (Cal-DB).
Gzenbaksh Singh Sib/.ia v. Stale of Punjab, AIR 1980 SC 1632 : (1980) 2 SCC
565:1980 Cr. LJ 1125.
unless it is cancelled under S, 43929 In the undermentioned case,30 the
Supreme Court has held that it is necessary that anticipatory bail orders
should be of a limited duration only and ordinarily on the expiry of that
duration or extended duration the Court granting anticipatory bail should
leave it to the regular Court to deal with the matter on the appreciation of
evidence placed before it after the investigation has made progress or the
charge-sheet is submitted.

X. Interim order of anticipatory bail— Notice to P.P and S.P.

(Sub-sec. IA).— Where the Court grants an interim order under sub­
section (1), it shall forthwith cause a notice being not less than seven days
notice, together with a copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a view to give the Public
Prosecutor a reasonable opportunity of being heard when the application
shall be finery heard by the Court. This amendment in the section will
come into force from the date of its notification.

XI. Presence of the Petitioner (Sub-sec. IB).— The presence of the

applicant seeking anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the Court, if on an
application made to it by the Public Prosecutor, the Court considers such
presence necessary in the interest of justice. This amendment in the section
will come into force from the date of its notification.

XII. Applicability to non-bailable offences.— This section

could be invoked only in cases of non-bailable offences.31 This section is
not attracted to bailable offences.-52

Nattunasu v. State, 1998 Cr. LJ 1762 (Mad).

30 Salauddin A bdul Samad Shaikh v. State of Mahanashtm, (1996) 1 SCC 667 (668)
: AIR 1996 SC 1042 : (1966) 1 SCC 667.
31 Muthuswami v. State of Kenala, 1980 Cr. LJ 1022 (Kef).
32 Ramdayal v. State ofMP., 1991 (3) Crimes 152 (MP); E. Malliah v. State ofA.P.,
2003Cri L J NOC 153 : (2003) 1 Andh LD (Cri) 726 (AP) (Offence under S. 36,
A.P. Excise Act, bailable, S. 438, CrPC inapplicable); Rajesh Utna Kunian v.
State of Chattisganh, (2002) 3 Cri R 528 : 2002 Cr. LJ 1175 (1177) (Chatt).
 XIII. S. 438 applicable to all non-bailable offences.— S. 438
applies to all non-bailable offences. It is not confined to duly those non-
bailable offences which are punishable with death or imprisonment for
life.33

XIV. Applicability to cognizable and non-cognizable cases —

Anticipatory bail can be granted in respect of non-bailable offences
whether they are cognizable or non-cognizable offences.j4
XV. Distinction between bail and anticipatory bail.— The
distinction between an ordinary order of release on bail under S. 437 and an
order of anticipatory bail under this section, is that whereas the former is
granted after arrest and therefore means release from the custody of the
police, the latter is granted.jp, anticipation of arrest and is therefore effective
at the very moment of arrest.35

XVI. Charge sheet filed, cognizance taken— Anticipatory

bail.— The Courts have power to grant anticipatory bail even in cases
where either cognizance has been taken or charge sheet has been filed36

XVII. If Anticipatory bail can be granted even after

warrant/summons has been issued? Anticipatory bail can be granted even
after the Criminal Court has taken cognizance, and summons or warrant has
been issued by the Court,37 though in the under mentioned case,38 contrary

State of Andhna Pnadesh v. Btrnal Knishna Kundu, AIR 1997 SC 3589 : AIR
1997 SCW 3700 :1997 Cr. LJ 4056 (4058): 1997 SCC (Cri) 1245.
Sunesh Vasudeva v. State, 1978 Cr. LJ 677 (Del).
Gunbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980) 2 SCC
565 :1980 Cr. LJ 1125; Nattunasu v. State, 1998 Cr. LJ 1762 (Mad).
Bharat Chaudhany v. State ofBihan, (2003) 8 SCC 77 2003 SCC (Cri) 1953 :
2003 Cr. LJ 5038 (5039) (SC).
Akhalaq Ahmed F. PateI v. State of Maharashtra, 1998 Cr. LJ 3969 (13om);
Sheikh Khasin Bi v. State, AIR 1986 AP 345 :1986 Cr. LJ 1303 (FB); Ninbhay
Singh v. State ofMP., 1996 (1) Crimes 238:1995 Cr. LJ 33. 17 (MP-FB); Puran
Singh v. A lit Singh, 1985 Cr. LJ 897 (P&H-DB); Pankaj Lochan Sahoo v. State,
1996 (2) Crimes JJJ (Cal); P. V. Nansimha Rao v. State, 1997 Cr. LJ 961 (Del-
DB); A nun Kitman v. State of MP., 2000 Cr. LJ 1644 (MP); Nattunasu v.State of
Madnas, 1998 Cr. LJ 1762 (Mad); Sennasi v. State, 1997 (3) Crimes 112 (Mad);
A, Ebenezen v. State of Kannataka, (2003) 2 Crimes 44 (2003) 6 Kant U 171 :
2003 Cr. LJ 265 (268) (Kant) (Dissenting from 1986 Cr. LJ 1303 (FR); Shamim
Ahmedv. State, (2003)2 Cl-IN 431 (2003)2 HCR 589 : 2003 Cr. LJ 2815 (FR)
(Cal).
 view has been taken.
XVIII. Anticipatory bail—who may be granted.—The anticipatory
bail under S. 438, may be granted to the following persons—

(i) Government servants

(ii) Minors
(iii) Women
(iv) Old and infirm persons
(v) Handicapped persons
(vi) Persons having permanent disability
(vii) Persons who are involved in petty cases
(viii) Persons who are likely to be harassed in police custody.

For other category of cases, the general law of bail is already provided in
S. 439.

The discretion of granting anticipatory bail has to be exercised sparingly

in appropriate cases, with due care and caution imposing required
conditions.39

XIX. Broad circumstances for grant of bail.— In the following

circumstances and conditions Court can give direction for grant of bail
under this section:—

(a) The provisions of this Section are an exception to the general rule
and this power should be exercised in exceptional cases.

(b) The considerations governing exercise of powers under this section

are materially different from those when an application for bail is
made by a person who is in custody during the investigation or who

38 Ashok Kumar v. State of Orissa, 2000 Cr. LJ 1975 (On); Kundal Majumdar v.
State of Tnipura, 2002 Cr. LJ 353 (Gau); Ambalal P. Reshamwala v. State of
Mahanashtna, 1992 Cr. LJ 2373 (Bom); Panka] v. State of Rajasthan, 1996 Cr.
LJ 3265 (Raj); Kundal Majumdan v. State of Tnipuna, (2002) 1 Gau LR 282 :
2002 Cr. LJ 353 (355) (Gauh).
39
Nanayansingh v. State ofMP., 1996 Cr. LJ 551 (MP).
 is convicted and his appeal is pending before High Court.

(c) In an application under this section the applicant must show that he
has reasons to believe that he may be arrested for a non-bailable
offence and grounds for such belief must be capable of being
examined by the Court objectively and this section cannot be
invoked on the basis of vague and general allegations, as
anticipatory bail is a device to secure the individual’s liberty; it is
neither a passport to the commission of crimes nor a shield against
any and all kinds of accusations, likely or unlikely.

(d) In disposing of an application for anticipatory bail the High Court or

the Court of Session must apply its own mind to the question and
decide whether a case has been made out for granting such relief.

(e) The filing of a first information report is not a condition precedent

to the exercise of the power under this section and anticipatory bail
• can be granted so long as the applicant has not been arrested.

(1) An order under this section can be passed without notice to the
Public Prosecutor. But such notice should be issued forthwith and
the question of bail should be re-examined thereafter in the light of
respective contentions of the parties.

(g) If the proposed accusation appears to stem not from motives of

furthering the ends of justice but from some ulterior motive, the
object being to injure and humiliate the applicant by having him
arrested, a direction for the release of the application on prearrest
bail in the event of his arrest should generally be made.

(h) Status in life, affluence or otherwise, are hardly relevant

considerations while examining the request for granting anticipatory
bail. Anticipatory bail to some extent intrudes in the sphere of
investigation of crime and the Court must be cautious and
 circumspect in exercising such power.

(i) Some very compelling circumstances must be made out for granting
bail to a person accused of committing murder and that too when
the investigation is in progress.

(j) This section may be attracted when an influential person is the

complainant against a weak person or in the case of political rivalry
between two persons if a case is instituted against a political rival.
However there must be some indication that the allegations are
false.40

(k) Where allegations against the petitioner are of general nature,

anticipatory bail would be allowed.50 The considerations which
ought to weigh the Courts while granting bail either under this
section or S. 439 are:—
(l) The nature and gravity of the circumstances in which the offence is
committed;

(2) The position and the status of the accused with reference to the
victim and the witnesses;

(3) The likelihood of the accused fleeing from justice;

(4) of repeating the offence;

(5) of jeopardising his own life being faced with a grim prospect of
possible conviction in the case;

(6) of tampering with witness;

(7) The history of the case as well as of his investigation; and

(8) Other relevant grounds which may apply to the facts and
circumstances of a particular case.41

Adni Dharan Das v. State of West Bengal, 2005 Cr. LJ 1706 (SC); Sanzbhu Das
v. State of Tnipuna, 1988(1) Crimes 634 (Gau); see also Ninbhay Singh v.
State ofAL P„ (1996) 1 Crimes 238:1995 Cr. LJ 3317 (MP-FB).
Sajan Kitinan v. Stale, 1991 Cr. LJ 645, 633 (Del); M Knishnappa v. State of
Karnataka, 1992 Cr. LJ 2648 (Kant); Abdul Rashik Shaik v. State of Gujanat,
2001 (2) Guj LR 1580 (1586) (Guj) (Various aspects to be considered while
 Anticipatory bail is not to be granted lightly, indiscriminately and in
any event, that it should never be granted in situations where it would
seriously affect an investigation,42 While deciding the question of

anticipatory bail, the Court would not be guided by the cover of the
allegations but would look into the nature of the allegations and would
decide whether a prima facie case with which the accused has been charged
is made out or not.43

Where ingredients of offence, in the instant case of S. 366A I.P.C., are

made out, anticipatory bail should be refused.54

Without looking to the>gravity of the offence, bail would not be refused

merely because the petitioner would influence the witnesses.44

XX. FIR not a pre-condition.— Filing of FIR is not a condition

precedent for preferring and disposing an application for anticipatory bail.45

XXI. Surrender not to be insisted.— In respect of an application

for anticipatory bail surrender of accused cannot be insisted upon,46

XXII. Nature of discretion.— The discretion exercisable under

this section is not totally uncontrolled and unfettered by any principle of
law or by other statutory provisions.47 The grant of bail under this section is

discretionary and governed by the restrictions and limitations under Ss. 437
& 439 (J&K Criminal Procedure Code).48

State of Kannaaka v. Rangappa, 2004 Cr. LJ 2720 (2721) (Kant-DB).

Rajesh Ulna Kitman v. State of Chattisganh, (2003) 3 Cur Cri R 528 : 2002 Cr.
LJ 1175(1177) (Chatt).
P.G. Gupta v. Stale, (2002) 101 DLT 193 (2003)66 DRJ 129 : 2003 Cr. LJ 1055
(1056) (Del).
In ne, Digendna Sankan, 1982 Cr. LJ 2197 (Del).
Hajialishen v. State of Rajasthan, 1976 Cr. LJ 1658 (Raj).
Gunbaksh Singh Sibia v. State of Punjab, AIR 1978 P&H 1:1978 Cr. LJ 20
(P&H).
48
Kali Dass \. 5.11.0. Police Station Reasi, 1979 Cr. LJ 345 (J&K).
 XXIII. Grant of blanket order impermissible.— The exercise of
power under this section is with regard to a specific accusation and cannot
be extended in a blanket fashion to cover all offences which the petitioner
may come to be charged.49 Bail granted under this section will be valid and
operative for those offences for which it was granted and such bail bond
will continue until it is cancelled.50 The grant of bail entertaining
anticipatory bail application stated); Yazdi Danabsha Inchaponia v. Sate of
Gujanat, 2003 Cr. LJ 2604 (2608) (Guj).

In anticipation of arrest does not amount to interference with the police

investigation (J & K Criminal Procedure Code).51

XXIV. Order not to affect investigation.— There is nothing in this

section or in its legislative history which could give the least indication that
the provision was intended to override the legitimate process of
• ... . . 59
investigation into serious crime.

XXV. Notice to public Prosecutor.— An order of bail can be passed

without notice to the Public prosecutor. But notice should be issued to him
or the Government Advocate forthwith and the question of bail should be
re-examined in the light of the respective contentions of the parties.53 As a
matter of abundant caution notice may be given to the complainant also54
On an application for grant of anticipatory bail, the investigating agency
would be given reasonable time to file objection to the application. Where
the copy of the application was served on the appellant only in the
afternoon the order for bail passed on the next day would be set aside.55

Gunbaksh Singh Sibia v. Stale ofPuniab, AIR 1978 P&H 1 :1978 Cr. LJ 20
(P&H).
Ramsewak v. State oJMP., 1979 Cr. LJ 1485, 1494 (MP-DB).
Kali Dass v. 5.110, Police Station, Reasi, 1979 Cr. LJ 345 (J&K),
Gunbaksh Singh Sibia v. State ofPuniab, AIR 1978 P&H 1 :1978 Cr. LJ 20.
Gunbaksh Singh Sibbia v. State of Puniab, AIR 1980 SC 1632 :(1980) 2 SCC
565:1980 Cr. LJ 1125; State ofAssani v. (Dn.) Bnojen Gogoi, AIR 1998 SC
143:1999 SCC (Cri) 403.
Chandnakant Chandulal Bhansali v. Snikanl Shniknishna Joshi, 1993 (2) Crimes
389 (Bom).
55
Union of India v. YusufRazak Dhanani, (2003) 8 SCC 908 : 2003 SCC (Cri) 1963
: 2003 Cr. LJ 4560 (4561) (SC).
 XXVI. Speaking order.—The Court is expected to pass a speaking
order furnishing salient features of the case, and the factors which weighed
with the Court while passing an order on a petition for anticipatory bail.56

XXVII. Duty of Court in serious offences.— It is not appropriate and

prudent to grant anticipatory bail in serious offences like murder etc., which
may cause prejudice by its very nature and thing.57 Even assuming that
1
Public Prosecutor consented for grant of anticipatory bail, judicial propriety
demands Sessions Judge to take into consideration the serious nature of the
accusation and gravity of the commission of the offences of double murder,
the incriminating material collected during the course of investigation till
then including their arrest, .the possibility of their making a fervent attempt
in defacing or tampering with the evidence available on record in a bid to
escape from the clutches of law, which would hamper the further progress
of investigation.58 The possibility of false implication of an accused, the
chances of the accused misusing his liberty and the possibility of himself
not making available for the purpose of investigation are some of the
factors which ought to be borne in mind by the Court while dealing with
the grant or refusal of anticipatory bail.59

XXVIII. “Reason to believe”.—The use of the expression “reason to

believe” shows that the belief that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not ‘belief, for which reason
it is not enough for the applicant to show that he has some sort of a vague
apprehension that some one is going to make an accusation against him in
pursuance of which he may be arrested.60 ‘Reason to believe’ in S, 438

Moti LaI v. State, 1994 (2) Crimes 1009 (Del).

Pokan Rani v. Stale of Ralasthan, AIR 1985 SC 969:1985 Cr. LJ 1175;
Samunden Singh v. State of Rajasthan, AIR 1987 SC 737:1987 Cr. LJ 705;
Raghvendna A was!hi v. State of Rajasthan, 1998 Cr. LJ 1159 (Gau).
N.K. S.M. Shahid l-laineedv. Mohamedlbnahi,n, 1992 Cr. LJ 227, 230 (Mad).
Bansi Lai v. State of Hanyana, 1978 Cr. LJ 472 (P&H).
Gunbaksh Singh Sibbia v. State ofPunlab, AIR 1980 SC 1632 : (1980) 2 SCC
565:1980 Cr. LJ 1125; Adri Dhanan Das v. State of West Bengal, 2005 Cr. LJ
1706 (SC); Nattunasu v. State, 1998 Cr. LJ 1762 (Mad); Add!. Dinector Genenal
ofAnti-Evasion v. Nathma! Bala], 1996 (4) Crimes 264 (AP).
obligate the existence of objective material for the subjective satisfaction of
the person apprehending in arrest. The objective material must be capable
of being examined by the Court. Only then the Court, if satisfied, will grant
relief under S. 438 but not otherwise.61 The Courts can grant relief only
when the reason to believe that the accused may be arrested for the non-
bailable offence is shown to exist. Therefore, in order to show the
background of the case and the materials for the genuine apprehension, the
Court may insist for the affidavit to be filed by the petitioner, if not at least
through supporting affidavit by some person related to him, in order to
enable the Court to decide whether to grant the relief sought for or not.62

XXIX. Where complaint referred to Police under S. 156(3) for

investigation.— where a complaint for non-bailable offences is sent by the
Magistrate under S. 156(3) to the police with direction to start a new case,
it is sufficient for the petitioner to entertain a reasonable belief that he may
be arrested and as such may be granted anticipatory bail.63

Where the Magistrate sends the complaint filed under Ss. 467, 468, 471
474, 420/120, 1PC to police and directs the police to start regular case, it
would be sufficient for the petitioner to entertain reasonable belief that he
may be arrested in conviction with a non-bailable offence, application for
anticipatory bail would be maintainable. (In Re. Sanjay Kumar Singhania,
2003 Cr. LJ 4789 (4789) (Cal).

XXX. Exercise of power in exceptional cases.— The power of

anticipatory bail has to be exercised sparingly and in exceptional cases.64
Although the power appears to be unguided, it is in fact required to be
exercised subject to limitations imposed by Section 437 on the power of
granting bail. In addition to the limitations incorporated in Section 437, the

l.Ghandnasekhana Raov. T. V Kaniala Kumani, 1993 Cr. LJ 3508 (3517) (AP-

D13).
Nattunasu v. State, 1998 Cr. LJ 1762 (1781) (Mad).
Sanlay Kwnan Singhania v. State, 2004 (2) Crimes 49 (51) (Cal).
Ba/ehanciJain v. MI'., AIR 1977 SC 366: (1977) 2 SCR 52:1977 Cr. LJ 225.
petitioner must make out a special case for getting anticipatory bail.65 When

power under S. 438 is exercised without giving reasons or on irrelevant

considerations not germane to the determination of the application, the
Supreme Court has to interfere in order to avoid miscarriage of justice66
Bail should not be granted without due application of mind to the facts of
the case. An indirect use of the power to grant bail would be an abuse of the
judicial process and would shake the confidence of the general public in the
judiciary.67 A person should be granted anticipatory bail only when the

Court is convinced that the applicant is such a person who would not
abscond or otherwise misuse his liberty 68 The jurisdiction under S. 438 is
not to be freely exercised without reference to the nature and granting of
the offence alleged, the possible sentence that may be Ultimately imposed,
the possibility of interference with the investigation or the witnesses and
the public interest.69

XXXI. Needless to establish political or other enmity.— Anticipatory

bail cannot be refused merely on the ground that the accused has failed to
establish political or other enmity. Cases in which falsity of the charge is
not established are also covered by this section.70

XXXII. Accusation should be with dishonest motive.— The

petitioner must satisfy the Court that the accusation against him does not
stem from ordinary reasons of furthering the ends of law and justice in
relation to the case but solely from other dishonest motive with the object
of humiliating him.71

XXXIII. Seriousness of the offence.— There cannot be inexplorable

formula in the matter of grant of bail. In other words, no hard and fast rule

Gunbaksh Singh v. Punjab, AIR 1978 p & H I.

PokanRam v. Rajasthan, 1985 Cr. LJ 1175 (SC): AIR 1985 SC 969 : (1985)2
SCC 597.
State v. Yoginden Kuinan, 1985 Cr. LJ 685 (Del).
Nansingh LaI Daga v. State, 1977 Cr. LJ 1776 (Pat).
N'mbhay Singh v. State ofMP., 1995 Cr. LJ 3317 (MP-FB).
Jagannath v. State of Mahanashtna, 1981 Cr. LJ 1808 (Bom).
Gunbaksh Singh Sibia v. State, AIR 1978 P&H 1: 1978 Cr. LJ 20.
can be laid down in discretionary matters like the grant or refusal nor can
there be an inflexible principle governing the exercise or discretion except
that discretion should be exercised judiciously having regard to peculiar
facts and circumstances of each case. The Court is not expected to conduct
a pre-trial of the case and consider the probability of guilt or innocence, but
can certainly look into the material available on record for exercise of its
power. The fact that offence is a serious one is not by itself a good ground
for refusal, if otherwise entitled to.72

XXXIV. Keeping out of reach of police.— The mere circumstance

that the petitioners are keeping themselves out of the reach of the police is
not a sufficient ground to deny the relief of anticipatory bail to them, when
there is no possibility of the absconding as they are agriculturists by
profession.73

XXXV. Enticing girl.— In the case of enticing a girl who is aged

above 18 years, the accused having married the girl since then gives an
undertaking to treat her well, besides, the girl had accepted the marriage
and claimed to be pregnant, anticipatory bail may be granted in the interest
ofjustice to protect the victim girl from social stigma.74

XXXVI. Grant of bail to co-accused (Parity).— When two co­

accused have been enlarged on bail the petitioner being similarly placed
should be allowed the benefit of bail.75 Where one co-accused is acquitted,
on that ground alone the absconding co-accused is not entitled to
anticipatory bail.

Anticipatory bail to an accused would not be refused merely because

other accused has been granted regular bail.77

R.L. Jalappa v. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant).
Gaffansah v. State of Kannataka, 1991 Cr. LJ 2136, 2138 (Kant).
A mm Kiiman v. State, 1990 Cr. LJ 1988 (On).
Sadya v. State ofRajasthan, 1988 (3) Crimes 472 (Raj).
Munna Muni Khan v. State of Rajasthan, 1996 Cr. LJ 831 (Raj).
State of Kenala v. KR. Sttna, 2004 Cr. LJ 1995 (2000) (Ken).
 XXXVII. Offence under S. 302 Indian Penal Code.— In the case of
an offence punishable under Section 302 I.P.C., it is proper to consider the
application under this section for anticipatory hail unless aprima facie case
has been made out. The High Court has power to entertain the application
in appropriate Cases particularly when prima facie case has not been made
out.-8 Very compelling circumstances must be made out for granting bail to
a person accused of committing murder and that too when the investigation
is in progress. There cannot be any dispute regarding the proposition of
law that the Court has got power to grant anticipatory bail even in murder
cases. But, the power of granting of anticipatory bail is discretionary and
the discretion vested in the Court is to be exercised judiciously and not
arbitrarily or capriciously. When a Judge grants bail or anticipatory bail in
any case, much more so in ;cases of murder, he is required to give cogent,
RO
judicious and proper reasons in support of his Order.

Where earlier bail application was rejected on clear finding on merits

and the evidence prima facie indicates commission of murder in ghastly
manner, the accused is not entitled to bail.81 In highly sensitive case the
person seeking anticipatory bail are not entitled to that relief as a matter of
course.82 The Court should be circumspect in granting anticipatory bail in a
murder case.83

XXXVIII. Kidnapping case.— Where the prosecutor was legally

married wife of the petitioner as revealed by the certificate of marriage and
photographs of marriages, the petitioner on charge for offence under Ss.
363 and 366, IPC was granted anticipatory bail.84

XXXIX. Police officials.— Where the accused is a police constable,

78 M Knishnappa v. Slate, 1992 Cr. LJ 2648:1992( 1) Crimes 618, 621 (Kant).

79 Vasant v. State of Karnataka, 1991(1) Crimes 861, 864 (Kant).
80 State of Kannataka v. Nanayanappa, 1991 (2) Crimes 850 (Kant).
81 Alanik Chandna v. Chandna Bhushan, 1991 (1) Crimes 461 (MP).
82 JaiShekan v. State of Kannataka, 1991 Cr. LJ 1100:1991(1) Crimes 365, 376
(Kant).
83 V. Shekan v. State of Kannataka, 1991 Cr. LJ 1100:1991(1) Crimes 365, 375
(Kant).
84 Dhanararn v. State of Chattisgarh, 2002 (1) Crimes 726 (726) (Chatt).
delay in registering complaint against him is no ground for granting
anticipatory bail to him.85 Where the accused are sub-inspector and police
constables who have made themselves scarce by absconding and they have
not even appeared to draw their subsistence allowance as they are placed
under suspension, the case is a case of extreme sensitive nature with wide
social and political repercussions, the accused by their very status wield
their influence over the material witnesses required for interrogation and
86
thereby hamper the investigation, they are not entitled to anticipatory bail.

XL. Minister.— A Minister of State who is concerned in an

offence us. 307 I.P.C., cannot be granted anticipatory bail, as there is
likelihood of confidence of public being shaken, if investigation is
87
interfered with, by allowing the application.

XLI. Power to impose conditions.— The Court has the power to

impose conditions while granting anticipatory bail.88 An order under the
section for the release of a person on bail after his arrest could be limited in
point of time.89 There are no in-built restrictions to consider an application
for anticipatory bail. At the same time this discretionary power can be
exercised and whenever necessary, restrictions and conditions can be
imposed.90

In prosecution for. offence under Ss. 406/498A, while granting bail

imposition of condition that the accused husband shall deposit certain
amount for protecting interest of wife was held invalid.91 The imposition of
other conditions must have some nexus with the object of stipulating such
conditions of direction to pay certain amount to some person has no nexus,

Dhanafarn v. Stale of Chattisgarh, 2002 (1) Crimes 726 (726) (Chatt).

Stanley v. State, 1998 Cr. LJ 1304 (Mad).
Md. Muzafar Hossain Khan v. State of Orissa, 1990 Cr. LJ 1024 (On).
Gurbaksh Singh Sibbia v. State of Punjab, 1980 SC 1632:1980 Cr. LJ 1125 ;
(1980) 2 SCC 565.
I. Y Chandra Earappa v. State of Karnataka, 1989 Cr. LJ 2405,2414 (Kant-DB).
N.K. Nayar v. State of Maharashtra 1985 Cr. LJ 1887:1985 (2) Crimes 304, 307
(Bom-DB).
91
Sunil Sharma v. State, 1993 Cr. LJ 3628 (Del); Dines/i A/u/wa/ia v. State, (2002)
99 DLT 387 : (2002) 64 DRJ 427: 2003 Cr. LJ 980 (982) (Del).
it is nothing but amounts to enforcement of a civil liability such a condition
cannot be imposed.92 Where accused involved in offence under Ss. 420,

406, 468, 467,471 and 120B I.P.C., was enlarged on bail subject to deposit
of Rs. 10 crores, it was not a proper exercise of discretion, hence the order
as to deposit of Rs. 10 crores was set aside.93 Where a person applies for
bail in a case accused of embezzlement, that the accused should deposit the
embezzled amount or should furnish bank guarantee therefore, is not
relevant and not unsustainable.94

XLII. Right of complainant to be heard.— As far as application

for grant of bail is concerned there is no provision made in the Code, that a
complainant or a third party can intervence and make any submissions
independently in opposingThe application for grant of bail or anticipatory
bail.95 In an application for bail the relatives of the applicant cannot
intervene.81’ The Sessions Court has no inherent powers to modify or
review the order or anticipatory bail.96

XLIII. Interim bail.— The grant of interim bail can hardly be a

circumstance while deciding the anticipatory bail on merits.97 The High
Court or Court of Session cannot stay the arrest of an applicant under this
provision during the tendency of the application. However High Court
under S. 482 can pass an order of interim bail in appropriate cases. When
the accused a driver has to remain normally out of his village and he had no
knowledge of the offence and when co-accused have been acquitted interim
bail can be granted.85 Interim anticipatory bail can be granted to the
petitioner even in the absence of the records.99

92 VSatyanarayana v. State ofA.P., 2000 Cr. LJ 605 (AP); Shaik Layak v. State,
1981 Cr. LJ 14 (AP); Darshan Singh v. State of Rajasthan, 1993 Cr. LJ 1973
(Raj).
93 Avinash Arorav. State of U.T. Chandigar, AIR 2000 SC 3563 (1): AIR 2000
SCW 3563 : 2000 Cr. LJ 4674 (SC).
94 Darshan Singh v. State of Rajasthan, 1993 Cr. LJ 1973 (Raj); Banwari Lai v.
State of Rajasthan, 1979 Raj Cri C 158 (Raj).
95 Indu Bala v. Delhi Administration, 1991 Cr. LJ 1774 (Del).
96 P.S. Saravanabhavanandam v. 5. Miirugaiyyan, 1986 Cr. LJ 1540 (Mad).
97 Dianusidari Prasad v. State of Bihar, 1990 (3) Crimes 524 (Pat).
98 Anant Vasant Joshi v. State of Maharashtra, 1986 (1) Crimes 170 (Born).
99 Sanjeev Chandel v. State ofH.P., (2003) 2 Rec Cri R 450 : 2003 Cr. LJ 935 (936)
 An interim anticipatory bail for a limited period may be granted by the
Court even without issuing notice to the Public Prosecutor pending
consideration of the petition on merits.100 An interim anticipatory bail may
be granted even for a limited period for want ofjurisdiction.88

In cases where there is no likelihood of the accused fleeing from justice

or tampering with the evidence or a clear case of custodial interrogation is
not made out, and application for grant of anticipatory bail cannot be heard
at an early date, interim protection should be normally be provided to such
QQ

accused persons.

Where the application for anticipatory bail is pending before the High
Court, and the Court has granted interim anticipatory bail, the accused can
file bail for regular bail before the Sessions Curt only with the permission
of the High Court.90

XLIV. Power to grant anticipatory bail after filing charge-

sheet.— Filing of a charge-sheet and issuance of a warrant for arrest does
not put an end to the power to grant anticipatory bail.91 Filing of challan
will not circumvent the benefit under this section. However, in the
following cases view has been taken that on submission of charge-sheet,
right to be released on anticipatory bail does not survive.93

The section makes no distinction whether the arrest is apprehended at

the hands of the police or at the instance of the Magistrate, the issuance of a
warrant by the Magistrate justifiably gives rise to such an apprehension
entitling him to the grant of anticipatory bail.94 An application for
anticipatory bail can lie for directing the Committing Magistrate not to

(HP); Anil Kapoor v. State of Himachal Pradesh, (2002) 1 Chand LR (Civ & Cri)
269 (HP).
100
N. Snrya Rao v. State of Maharashtra, 2001 (2) Andh LT (Cri) 341 (343): 2002
Cr. LJ NOC 170 (AP); Bad and v. State of A1P., AIR 177 SC 366; Gurkaksh
Singh v. State of Punjab, AIR 1980 SC 1632.
commit the accused to custody under S. 209101

XLV. Enforcement of anticipatory bail order.— The arresting

authority or the lower Court before which the order granting anticipatory
bail is produced are bound to enforce the pre-arrest order.102 Fresh order on
the bail application is not required.103

XLVI. Cancellation of anticipatory bail.— Anticipatory bail may

be cancelled us. 439(2) if the accused is found to be tampering with
prosecution evidence.104 When this section permits of making of an order

and order is made granting anticipatory bail, it is implicit that the Court
making such an order is entitled upon appropriate consideration to cancel or
recall the same, It is not necessary for such purposes to find out any further
specific provision conferring power of cancellation.105 The cancellation of
anticipatory bail already granted can be ordered only when the accused has
interfered with the course of justice by tampering with the evidence or has
misused or abused his privilege.106 Very cogent and overwhelming
circumstances are necessary for an order seeking cancellation of bail.107

Where accused facing prosecution under Ss. 406 and 498A, IPC have been
released on bail, bail would not be cancelled merely because articles of
stridhan have not yet been returned.108 A reasoned and well considered
order granting anticipatory bail would not be cancelled by the High Court
by mere observation that bail has been obtained by dubious means.109
Where the High Court had refused anticipatory bail and the Supreme
Court had refused to interfere with the order of refusal passed by the High
Court, anticipatory bail subsequently granted by the Sessions Judge was

N. Suiya Rao v. State of Malaras/itra, 2001 (2) Andh LT (Cri) 341 (344): 2002
Cr. LJNOC 170 (AP).
Sukoor v. MS Kanti, (2002) 5 Kant U 194 : 2002 Cr. LJ NOC 246 (Kant-DB).
Sukoor v. MS Kanti, (2002) 5 Kant U 194 : 2002 Cri J NOC 246 (Del).
Jairam Tiwari v. Stale ofBihar, 1987 Cr. LJ 254 (Pat).
Stale of Maharashtra v. Vishwas, 1978 Cr. LJ 1403, 1405 (Bom-DB).
Vishwanath Tiwari v. State of Bihar, 1988 Cr. LJ 333 (Pat).
Rajan Mahajan v. State, 2002 Cr. LJ 2433 (2434) (Del); Bhagirath Singh v. State
of Gujarat, AIR 1984 SC 372:1984 Supp SCC 372:1984 Cr. LJ 160.
Rajan Mahajan v. State, 2002 Cr. LJ 2433 (2434) (Del).
Mahant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18 : (2003) 1 SCC
326 : 2003 Cr. LJ 76 (81, 82) (SC).
cancelled.110

XLVII. Power of cancellation.—Anticipatory bail granted by the

High Court can only be cancelled by it and not by the Magistrate or the
Session Judge.111 By and large the following legal principles, amongst
others, would be relevant in the matter of consideration of the question of
cancellation under Section 439(2) by the High Court of anticipatory bail
granted under Section 438 or of bail granted under Section 439(1) by the
Sessions Judge. Normally, very cogent and overwhelming grounds or
1 10
circumstances are required to cancel the bail already granted.

(1) An order granting anticipatory bail under Section 438 or bail under
Section 439(1) is amenable to appellate provisional scrutiny and may be
cancelled if it was made in arbitrary or improper (and not judicial) exercise
of the discretionary power or was made without application of mind or
without consideration of all relevant circumstances or was based upon
irrelevant considerations or was vitiated by any basic error of law or was
otherwise perverse.

(2) An order granting bail may be cancelled in case new or supervening

circumstances arise after the release on bail such as abuse of the liberty by
hampering the investigation or tampering with witnesses or by committing
same or similar offence but existence of any supervening circumstance
following the grant of anticipatory bail or bail is not the only criterion for
cancellation of such bail.113

(3) Although the discretionary power to cancel bail is extraordinary and

is to be exercised sparingly, nevertheless, it is meant to be exercised in

Dharampal v. State of Punjab, (2002) 1 P&H 477 : 2002 Cr. LJ 1621 (1623)
(P&H).
Bolai Mistry v. State, 1977 Cr. LJ 492 (Cal-DB).
Mahant Chand Nath Yogi v. Stale of Haryana, AIR 2003 SC 18 : (2003) 1 SCC
326 : 2003 Cr. LJ 76 (82) (SC); Subi endu Mishra v. Subrat Kumar Misra, AIR
1999 SC 3026 :1999 Cr. LJ 4063; Dolat Ram v. State of Haryana, (1995) 1 SCC
349; JT 1995 (1) SC 127.
AK. Murmu v. Prasenjit Choudwy, 1999 Cr. LJ 3460 (3468) (Cal-DB).
appropriate cases, however few those cases might be,

(4) Order granting anticipatory bail or bail must not tantamount to

interference with efficient exercise of statutory functions when dealing with
economic offences such as those under the FEAR.

(5) Advantage of custodial interrogation should be taken into account in

granting anticipatory bail or bail.

Where an accused was enlarged on bail in the event of his arrest for
offences alleged under Sections 279, 337 and 304A, I.P.C., but about 33
days later the offences were altered to Sections 302 and 307 I.P.C.,114 for
about a year since grant of bail accused has not violated any of the
conditions of bail and police have not filed charge-sheet even after lapse of
a year and two months and in the absence of cogent and overwhelming
circumstances cancellation of anticipatory bail is not justified.”

XLVIII. Cancellation.— An improper grant of bail is one of the

circumstances for cancellation of the same.115 Where accused in gang-rape,
influential and rich was granted anticipatory bail not on merits but on other
considerations was not taking interest in the investigation, anticipatory bail
was cancelled.116 Where there were serious allegations of dowry death and
the investigation was in progress, the anticipatory bail granted was liable to
be cancelled.117 Where anticipatory bail was granted by the Sessions Judge

turning down the request of the police to grant reasonable time to recover
property without giving reasons, was cancelled.118 Merely because the
accused has not controverter the allegations made in' the petition for
cancellation of bail would not be a ground for cancellation of anticipatory
bail.119

Uttaranchal and v. State ofJ&K, 1989 (2) Crimes 626, 630 (J&K-DB).
Suresh Chandra Gin v. State of Orissa, 1988 (3) Crimes 428 (On).
Court on its own motion v. Sanjay, 1995 Cr. LJ 1824 (P&H).
Kitnibeh v. State of Gujarat, 1992 Cr. LJ 1994 (Guj).
Gabriel Joseph v. Feroz Gtdain Sarvar Khan, 1992 Cr. LJ 458 (Born).
Sanmnukha Swamy v. State of A.P., 2001 (2) Andh LT (Cri) 131 (132): 2002 Cr.
LJ NOC 277 (AP).
 XLIX. Fresh conditions.— When prosecution moves the Court for
cancellation later, Court can impose fresh conditions, if warranted.120

L. In exceptional circumstances direct application in High Court.—

Normally Court of Sessions shall be first approached for moving
anticipatory bail application.121 An application for anticipatory bail shall be
filed in Court of Sessions unless special circumstances exist for filing in
High Court.122 Though the High Court and Sessions Court have concurrent
jurisdiction in the matter of granting of bail under this section or under S.
439, only Court of Session should be first approached and not the High
Court unless exceptional circumstances exist. An application can be
moved in the Court of Sessions Judge, and then after being rejected, in the
High Court.124

A Full Bench of the Calcutta High Court has summarized the law as
under:—

(a) The only remedy available to the accused upon rejection of regular bail is
to apply to the superior Court for regular bail and not once again for
anticipatory bail.

(b) Accused who prefers an application for regular bail in compliance with the
conditions stipulated in the order of anticipatory bail and physically
submits to the jurisdiction and order of the Court, before which such
application is filed, the application is required to be disposed of on merits if

Stale of Maharashtra v. Chandrakant Dahram Sonawana, 1991 (1) Crimes 844,

846 (Bom).
Chaju Rain v. State of Haryana, 1978 Cr. LJ 608 (P&H); Manisha (Sint) v. State
of Madhya Pradesh, 2003 Cr. LJ NOC 273 : 2003 (2) Crimes 402 (MP);
Shvasubramanyam v. State of Kerala, (2002) 4 All Cri R 819 : 2002 Cr. LJ 1998
(2002) (Kant).
K.C. Ivya v. State of Karnataka, 1985 Cr. LJ 214 (Kant); Shivasubramanyam v.
State of Kerala, (2002) 4 All Cri R 819 : 2002 Cr. LJ 1998 (2002) (Kant).
Hajiali Sher v. State of Rajasthan, 1976 Cr, LJ 1658 (Raj); Shivasubramanyam v.
State of Kerala, (2002) 4 All Cri R 819 : 2002 Cr. LJ 1998 (2002) (Kant).
Diplendu Nayek v. State of W.B., 1989 (1) Crimes 435, 443 (Cal-DB); A run
Madan v. State, 1993 (1) Crimes 599 (Del).
 the outer limit of the anticipatory bail has not expired and the accused has
appeared in person and placed himself in the control of the Court.

(c) If the application for regular bail is moved within the duration of
anticipatory bail, but the passing of the order is delayed for any reasons
whatsoever and it is likely to come after the expiry of the outer limit of the
duration fixed by the order of anticipatory bail, the Court hearing the
regular bail application can always grant interim regular bail for limited
duration till final orders are passed by the Court.

(d) If the application for regular bail is moved within the duration of
anticipatory bail and the same is rejected/refused but the outer limit
prescribed by the order of anticipatory bail has not expired, then instead of
taking the accused into custody he may be allowed to move the superior
Court for bail within the specified period namely the outer limit as
specified in the order of anticipatory bail.

(e) If the application for regular bail is moved after or the date as on which the
application for regular bail is rejected and in either case the outer limit
prescribed by the order of anticipatory bail has expired, then and irrthat
event on and from the date of expiry of the period fixed by the order of
anticipatory bail, the accused must surrender and be in the custody of the
Court before the superior Court can take up for consideration the
application for regular bail.125

The applicant has the right to choose forum and he can approach the
High Court direct for bail.126

The Sessions Court and the High Court have concurrent jurisdiction in
matters relating to grant of anticipatory bail.127 The section clearly

Maya Rani Gum v. State of West Bengal, (2002) 4 Cl-IN 480 : 2003 Cr. LJ 1 (1)
(Cal) (FB).
126
Bajan v. State of Kerala, 2004 Cr. LJ 3427 (3431) (Ker-DB).
127
Jagamath v. State of Maharashtra, 1981 Cr. LJ 1808 (Born); State of Tripura v.
Samuel Ruhul Askar, (2001) 2 GLR 546 (Gau),
contemplates two concurrent jurisdictions, namely of the High Court and
the Court of Session. It is left to the person to choose either of them. The
provision does not create any bar against moving the High Court without
first moving the Session Court.128 However, it has been held that unless
exceptional circumstances exist, the Court of Session should be approached
first.129

Where an application is rejected by the Court of Session, a fresh application

cannot be made to the High Court. Where application for anticipatory bail
has been rejected by the High Court, first application for anticipatory bail
cannot be entertained by the Sessions Judge.

Only in exceptional cases an application for anticipatory bail shall be

moved before the High Court instead of Court of Session. A petition for
anticipatory bail can be filed direct in the High Court without first
approaching the Court of Sessions. A petition is maintainable before the
High Court even if a similar application has been made and rejected by the
Court of Session.

LI. Relief under Art. 226 of Constitution of India.— When there is a

threat of deprivation of liberty of the petitioner in the State of Delhi in
connection with an offence alleged to have been committed in the State of
Uttar Pradesh, the cause of action in part certainly arises in Delhi.
Therefore, it has jurisdiction in the matter irrespective of the seat of the
Government or the High Court within whose jurisdiction the offence is
alleged to have been committed.130 A Court has no jurisdiction to grant
anticipatory bail to a person against whom a case has been registered with a
police station which is outside the territorial jurisdiction of that State.86 The
power of a Court to grant anticipatory bail is not affected by the
constitution of a special tribunal.87 Anticipatory bail remains in operation

Onkar Nath v. State, 1976 Cr. LJ 1142 (All); Mohan La! v. Prem Chand, AIR
1980 HP 36 (FB).
Hajiai Sher v. State of Rajasthan, 1976 Cr, LJ 1658 (Raj); KC. lyya v. Karnataka,
1985 Cr. LJ 214 (Kant).
130
Capt. Satish Kumar Sharma v. Delhi Administration, 1991 Cr. LJ 950, 956 (Del-
DB).
until the conclusion of the trial unless cancelled by the appropriate Court.88
It was held that even though provisions of Chapter XXXIII of the Code did
not apply to Arunachal Pradesh, it could not be contended that a Person
could not get himself released on bail in the wake of his arrest. The
procedure in S. 438 had a clear nexus with personal liberty of an individual
which is protected by Article 21 of the Constitution. It was therefore
observed that the procedure set out in Section 438 of the Code was one of
the basic principles of the Code and therefore argument of its non­
applicability could not be sustained. In Gurubaksh Singh v. Punjab the
Supreme Court observed that the Sessions Court or the High Court are free
to decide whether to grant or not to grant the anticipatory bail on
considerations similar to those mentioned in S. 437 or which were
generally considered relevant under S. 439. In order that the procedure
prescribed by S. 438 should be just and fair so as to be consistent with
Article 21 of the Constitution, the Courts had been left free to exercise their
discretion which, by their long training and experience they were ideally
suited to do. The Court gave useful directions as to how the power could be
used.

In cases where the person sought to be summoned as an accused has

not been allowed anticipatory bail by High Court or Court of Session, the
Magistrate has jurisdiction to issue non bailable warrant or in other words,
he is not mandatorily obliged to issue bailable warrant in the first instance.

LII Emerging Trends with Regard to Anticipatory Bail

A. Cases where hail was not cancelled

In a bride burning case sister-in-law of the deceased living

separately alleged to have caught-hold hands of the deceased when
deceased's husband poured kerosene oil on her, was allowed anticipatory
bail.131

(2002) 4 Crimes 86: (2002) 97 DLT 906: 2002 Cri J NOC 240 (Del).
 In Laxmikant Sarda v. State of Maharashtra132,

Where search, investigation and seizure are conducted by an

investigating officer not empowered, and as such investigation is illegal,
the accused would be allowed anticipatory bail. In Raiesh Utra Kumar v.
State of Chattisgarh133,

Where the allegations against the accused at the most made out
offences under Ss. 451 and 354, IPC, which are bailable, the accused was
granted anticipatory bail.

Mahant Chand Nath Yogi v. state of Haryana134, Where the

appellants joined investigation whenever required, they were named as
accused for committing offence under S. 120B, after a period of four and
half months on the disclosure statement of a hardened criminal, the order
granting anticipatory bail would be proper.

In Surender Kumar Sahu v. State of Chhattisgarh135,In a case

registered under Ss. 419, 420, 467,468 and 471, IPC petitioner and
advocate verifying a surety as per practice was allowed antitipatory bail as
he had no intention to commit any offence.

In Mahender Rani Johar v. State of NCT of Delhi136,

In. case registered under Ss. 307, 498A and 304B/34, where the
death summary showed that it was case of suicide, the petitioner married
sister-in-law of the deceased having two minor children was granted pre­
arrest bail,

In Manbahari Devi v. State of Rajasthan137. In case registered

under Ss. 307, 323 etc. the main accused who had grievous injury had been
granted bail, petitioners women to whom no grievous injury was attributed

(2002) 1 Cur Cri R 484: 2002 CrLJ 1040 (1050) (Bom).

(2002)3 Cur Cri R 528 : 2002 CrLJ 1175 (1177) (Chatt).
2003 CrLJ 76 (81) (SC).
2004 (2) Crimes 86(87) (Chhatt).
2005 CrLJ 2110 (Del).
2004(1) Crimes 650 (651) (Raj).
were allowed anticipatory bail.

In Ramesh Gandhi v. State of Jharkahand138, Where the

petitioner Branch Manger of a Bank and other petitioners directors of a

company in conspiracy, were charged under Ss. 420, 120B and S.13 of the
Prevention of Corruption Act, the petitioner Branch Manager of the Bank
issued bank guarantee in excess of the financial limits and allowed credit
facilities beyond his power and bank norms, it was a case of mere
irregularity and no loss was caused to the bank, the petitioner was granted
anticipatory bail.

B. Cases where bail was cancelled

In Chandrakanta v, state of Chattisgarh139, Where accused was

-, *‘Vi '•

involved. in heinous crime of kidnapping a minor girl and forcing her to

marry, antitipatory bail was refused.

In Parminder Singh Garcha v. State of Punjab140.Where the FIR

filed under Ss. 420, 120B, IPC and S. 13(l)(d)and S. 13(2)of Prevention of
Corruption Act pertained to conspiracy cheating and causing, wrongful
losses to the Punjab Technical University and also unauthorizedly running
various centers, case required further probe, anticipatory bail was rejected.

In Natvarbhai Pitamberbhai Patel v. State of Gujarat141,Where

FIR filed under Ss. 167,407,420, 409,467,468 and 471, IPC against the
petitioner, one of the Directors of the Co-operative Society contained
allegations of borrowing of huge loan against bye-laws of the society and
misappropriation thereof anticipatory bail was refused.

In Mohd. Zakir Hussain v. State of Haryana142,Where the FIR

under S. 419, 420, 465,466,467,471 showed prima facie case of
kidnapping, cheating and forgery, anticipatory bail was declined.

2004 CrLJ 1037 (1040,1041) (Jhr).

2004 CrLJ NOC 14 (Chatt).
2004 CrLJ 75 (78) (P&H).
2004 CrLJ 215(22l)(Guj).
2004 CrLJ 469 (473,474) (P&H).
LIII. Concluding Remarks

From the foregoing observation on anticipatory bail, it is concluded

that the legislatives objective in including this remedy into our code was
restricted to ensure liberty for those bound up in frivolous cases arising out
of political rivalries. This has led the facility of a bail being made available
to economic offenders a swell as unscrupulous politicians. It would not be
an overshot to say that today 'anticipatory bail' tantamount to misuse of the
machinery of criminal justice as it is more readily available to the affluent
but its definitely prejudicial to the interests of the administration of bail
process in the administration of criminal justice.