Image source -

This article is written by Shivam Choudhary.


It highlights the importance of grant of anticipatory bail as it protects the right to life and liberty enshrined under Article 21 of the Indian Constitution. It also signifies the essence of all the other kind of bails on an accused and their legality mentioned under CrPC (Criminal Procedure Code).

It also highlights the journey of anticipatory bail to becoming a fundamental right and even the various cases that played an essential role in it and made some judicial interpretations and suggested some guidelines to be used as a precedent for future reference.

Download Now

It also suggests some amendments that need to be enacted and implemented to improve the conditions of the alleged accused and to protect the interest of liberty and freedom.


“It Would Be Useful to Remind Oneself that the Rights Which the Citizens Cherish Deeply are Fundamental, is not the Restrictions that are Fundamental.”

  • Justice Bhatt

Justice Bhatt adduced this preeminent statement while bestowing the judgment for Sushila Aggarwal v. State of NCT of Delhi case. They mentioned in it that when Parliament has not thought it appropriate to curtail the rights of the citizens and the power of Courts in granting anticipatory Bails, hence, it is not in more substantial societal interest to reduce such forces & limit the liberty of citizens. The rights of the citizens are fundamental and no restrictions. They tried to inter-relate anticipatory bail with fundamental rights enshrined under the Constitution of India.

However, before entering into the façade of proving the legitimacy of Anticipatory bail as a fundamental right, Let us look into its nuances and the elemental compositions regarding the mentioned provision. 

First of all, let us understand the meaning of bail. There is no specific definition of “bail” mentioned under any section of CrPC, but the Courts have come up with its understanding through Judicial Interpretation. The Hon’ble Madras High Court has insinuated this in the case of Natturasu v. State of MadrasIt is an amount of money paid by an accused of a crime to get out of legal custody, by undertaking a promise to appear in the Court as and when required as a temporary measure until the trial is completed and compelling to remain within the jurisdiction of Court. 

It states that “The law of bails… has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.” 

Different Types of Bail in India

  • Regular Bail

It is a direction ordered by the relevant Court to release a person under arrest from police custody after paying a considerable amount as bail money. An accused can file for regular bail under section 437 and 439 of CrPC (Criminal Procedure Code).

  • Interim Bail

It is a direction ordered by the relevant Court to provide temporary and a short term bail to an accused to keep them out of jail or police custody until an application is pending against the Court for regular bail or anticipatory bail. However, people use it to misuse its power rather than to seek help awarded through this privilege. The Supreme Court in Rukmani Mahato v. the State of Jharkhand observed the misuse of interim bail by the accused.

  • Anticipatory Bail

It is a direction ordered by the relevant Court (District Court and High Court) to provide a pre-arrest bail to an accused of a crime. It can also be provided to a person even before an FIR has been filed against him. It is based on any preemptive apprehension of crime or an arrest. It is expressly provided under section 438 of CrPC. We will understand more about anticipatory bail and its journey to become a fundamental right in the coming sub-heading.

Anticipatory Bail as a Fundamental Right

Life and personal liberty are perceived as sacrosanct rights of every person under the Constitution of India. These are enshrined under Article 21 of the Indian Constitution. This Article states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It means that every person has a right to protect its right and liberty even though they are an accused of a crime or even an anticipatory accused. The provision of bail provides them with a chance to protect their liberty by getting out of the police custody and fighting their case with all measures possible. They can’t prepare their case for trial from behind bars as the accused person who enjoys freedom is in a much better position to look after the case and to defend them properly.

The provision of bail, especially anticipatory bail works on the principle of innocent until proven guilty. It is a fundamental principle substrataling the Criminal Jurisprudence, enshrined under Article 11(1) of the Universal Declaration of Human Rights. It also reflects that the grant of anticipatory bail is a fundamental right as the law cannot deprive them of life and liberty until they are proven guilty beyond a reasonable doubt.

There is a provision in Magna Carta which protects the life and liberty of a person similar to what the provision of Anticipatory bail does. “It provides that no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

Sub-section 1 of Section 438 of CrPC reads “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.” There is a rationale to maintain the provision of anticipatory bail as a fundamental right because there may be a chance that the complainant filing the FIR might be doing it out of hatred, influential persons try to implicate their rivals in false cases to disgrace them or to blackmail someone to get something intrinsic. 

Since these apprehensions to file false cases against a person might be non-bailable(murder charges, rape or sedition), there is a strong need to articulate this provision into a fundamental right as once they are arrested, they cannot do anything to get out of it but to wait for the trial to end. It is the utmost priority through which a person can protect its liberty and can enjoy the freedom against such unscrupulous false claims as they possess the power to cripple the sanctity of liberty and freedom.

Criminal amendment bill 2018 added Clause 4 to Section 438 and created exceptions to the law. In 2018, the legislature inserted four clauses under section 438 to create some exceptions through implementing the Criminal Amendment Bill, 2018. It states that anticipatory bail cannot be granted to a person accused of an offence of committing rape on a woman under 16 years of age, under 12 years of age, gang rape on a woman under 16 years of age and gang rape of a woman under 12 years of age, punishable under Section 376(3), 376 AB, 376 DA and 376 DB respectively of the Indian Penal Code (Punishment of rape), 1860. 

Though rape is a serious and heinous crime, and there should be provisions under law to punish the convict, but there is a vast gap between an accused and becoming a convict. But this exception to this provision is filling this gap, or we can say eradicating it and directly making an accused a convict who is against the spirit of justice. We know that rape is a tragic crime, but nowadays people go to any level to defame a person to take revenge or vengeance on them and in doing so can easily file a false cause against any person charging them for rape. This exception, instead of helping the women in need, might help the self-seeking ones and can destroy the right to avail an anticipatory bail.  

Judicial Odyssey To Fundamental Right

“When people can get away with crimes just because they are wealthy or have the right connections, the scales are tipped against fairness and equality. The weight of corruption then becomes so heavy that it creates a dent that forces the world to become slanted, so much so — that justice just slips off.”

― Suzy Kassem

We can easily deduce this quote with the need to grant the provision of anticipatory bail to an accused of a crime as they are also a victim of crime done by wealthy people who have the right connections which empowers them to file false cases against anyone they wish to. This type of malpractice in law creates corruption and disruption in the stroll of justice. There have been many landmark judgments to protect the sanctity of justice in this arena.

One of the recent judgments passed by Hon’ble Supreme Court in the case of Sushila Aggarwal v. the State of NCT of Delhi (2020) made it crystal that there is no provision of time restriction in the applicability of anticipatory bail. It does not specify that the effect of this provision will cease after the beginning of the trial as it can even continue until the end of trial depending upon the discretion of the concerned court. It was also enlightened that the conditions required following to avail the grant of anticipatory bail depend upon the discretion of the concerned court as situations may vary from case to case. As some crimes are more heinous than the rest, so in those cases, the court may have to impose harsher conditions for the grant of bail. The provision of discretion regarding condition is the essential matter that needs to be dealt with soon to establish au fait sanctity of law and justice in the country.

Before this landmark judgment, there was a heated discussion regarding the status of anticipatory bail in the Indian Judicial System. Some cases held that it an integral part of Article 21, others held that it is not a fundamental right as it can help a presumed convict to elope from getting justice as it can be termed as the most abused section of CrPC.

Anticipatory bail began its inception in Indian Judicial System through 41st report of Law Commission of India (1969). After this report, followed a trail of cases starting with Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. in which the court held that the provision of bail protects and safeguards the principle of liberty and freedom enshrined under Article 21 of the Indian Constitution and has a direct nexus to it.

In this case of Gurbaksh Singh Sibbia v. State of Punjab the applicant, who was the then Minister of Irrigation and Power of Punjab was denied the grant of anticipatory bail by the concerned due to reason of corruption charges. The court held that this provision must be used sparingly and only in exceptional cases. They also held that to protect the public interest and the court should not use discretion in serious economic offences involving blatant corruption.

This judgment was reversed by the five-judge bench of Supreme Court due to previous precedents and judicial interpretation and laid down some essentials for prospect and perusal.

  • Judicial Discretion
  • Power of reason to believe by the courts
  • Non-contemplation of blanket orders
  • Non-precedence of registration of FIR 
  • On-time period of bail
  • Seeking importance of Article 21
  • No provision of Anticipatory bail after arrest

Many of the judgments of the concerning cases were reiterated by the guidelines laid down in the previously mentioned case. However, there were also some judgments which were not in consonance with the updated law. Such as it was proclaimed that High Courts should not grant anticipatory bail to a person involved in a dowry death case as a matter of course (Samunder Singh v. the State of Rajasthan).

In Directorate of Enforcement v. P.V Prabhakar Rao, the grant of anticipatory bail was refused by the Supreme Court. It disclosed an ‘accusing finger’ against the respondent as he contributed to non-completion of the investigation, which is one of the conditions required to met to seek the said bail.

In Sidhram Mhetre v. State of Maharashtrathe Supreme Court quashed the decision of the High Court and granted the Anticipatory bail to the accused on the precedence of Sibbia case. They also directed that the provision can be granted if the accused is willing to co-operate with the investigation and not willing to flee the trial before its completion. This case was also used as precedence in Bhadresh Seth v. State of Gujarat as both the cases grants the right to life to the accused.

In one of the recent case of P Chidambaram v. Directorate of Enforcement, the division bench of Supreme Court stated that “Anticipatory Bail cannot be granted as a matter of right. It has to be exercised sparingly, especially in economic offences which constitute a class apart”. They reaffirmed the decision of Delhi High Court on granting anticipatory bail to the accused as it was a case of money laundering invoking the specific conditions of the said provision as it may hamper the ongoing investigation.

Even after all these years of judicial scrutiny and loads of landmark cases, there is still a need to amend the law regarding anticipatory bail as there are still some confusions regarding the term “discretion”. Until it is not specified or made crystal, courts may tend to create biasness and disruption of the right to life and liberty.  


There has been quite a heated debate over the years regarding treating anticipatory bail as a fundamental right. As we have enlightened our minds with the arguments that are elucidated in the present research paper, we can easily deduce that the Indian Judicial System has acknowledged the relief of anticipatory bail as a protector of life and liberty which can provide freedom to the alleged accused of the time being till the trial is completed against unscrupulous and venal false claims. But still, the system hasn’t accepted this provision openheartedly which is a must to protect the sanctity of justice and to make the concerned law “ironclad”. 

There are still some reservations to hold the free access of anticipatory bail to anyone who wishes to acclaim it. Theoretically, it is essential to hold the actual, alleged criminals from fleeing the trial (like we suffered in the case of Vijay Mallya, a serial economic offender). 

Still, these reservations and conditions can also result in biasness and a bane for poor and needy, who does not have powerful connections and which can ultimately hinder their case.

In the case of Prathvi Raj Chauhan v. Union of India, the Supreme Court decided that anticipatory bail must be granted under cases of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 2018. But this step infers that a Lower caste can easily disrupt the life of other people they try to mess with them. We are not saying that they do not suffer from atrocities. However, still, there is a probability that some section of their society can easily misuse this provision for personal gain. The legislature of the judiciary through judicial interpretation must rectify these flawed conditions and try not to them favourable for any particular party.

There is also a notion through judicial interpretation and precedents that only women and child (alleged accused) can avail anticipatory bail under non-bailable offences and there is no provision for the grant of bail to men under it. We must also amend the law regarding this situation to provide equal opportunity to men and women to protect themselves.

We might not believe or ignore all these menial flaws, but this is the need of the hour as it can endanger the right to life and liberty of an alleged person accused of a crime.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here