Legal Information / Articles


  • Introduction

The term “Bail” has been defined as: the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.

The primary object of arrest and detention is to secure the appearance of an accused during trial and ensure reception of sentence if found guilty. 

Bail itself has not been defined under the Criminal Procedure Code, 1973 but the terms “bailable” and “non-bailable” offences have been defined under Section 2 (a). 

Criminal jurisprudence in India follows bail as the rule and jail as an exception and everyone that is accused of an offence has the right to apply for bail.

  • There are several types of bail applicable that are based on the type of charges. For example:

Interim Bail- is for certain period of time granted before hearing to the prosecution.
Permanent Bail- permanent in nature and granted only after hearing to the petitioner a well as the prosecution.
Bail Before Arrest- it is granted when the court feels that the accused is falsely involved in the case and an arrest would affect his honour and dignity badly.
Bail on Arrest- Bail can be granted for both bail able as well as non-bailable offences after the accused is arrested against a charge.
Protective Bail- A bail granted so that the accused can approach the provincial court for getting a pre-arrest bail without touching its merit.
Directly Approaching Superior Court- the Superior Courts can grant pre-arrest bail in some appropriate cases directly if the accused has been deprived or prevented of approaching lower courts.
Bail for The Convict- Once convicted, bail is granted to the accused even if the appeal for the same is accepted if court finds that there are considerable grounds for his/her release.

  • What is anticipatory bail?
The concept of anticipatory bail is laid down in Section 438 in The Code of Criminal Procedure, 1973.
The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in cases of cognizable offences.
In cases of Criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused. It is literally applied for in anticipation of arrest.
It is a direction to release a person on bail, issued even before the person is arrested. 
If the accused has a reason to believe that he or she may be arrested on accusation of having committed a non-bailable offence then he or she has the right to apply for an anticipatory bail in the Sessions Court or High Court. One may even apply for anticipatory bail after learning about a criminal complaint made against them to the police.

  • Procedure for grant of anticipatory bail. 

The public prosecutor generally speaks with the police officer concerned. If there is no FIR filed, the Prosecutor would be of the view that there were no grounds for granting anticipatory bail.
If the judge agrees to this, Counsel will be verbally asked to withdraw the anticipatory bail. The Counsel may make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest. This is called the “notice bail” commonly. 
If the bail application is rejected in the Sessions Court, it would then be applied in High Court. If the High Court also rejects the bail, then further application on Supreme Court is permitted. In cases an FIR has been filed, the Investigating officer will send a notice of arrest. As soon as that notice is received, one should apply for anticipatory bail following the same procedure as stated above.
The High Court or Court of Session has the discretionary power to have any person released on bail to be arrested and commit him to custody on an application moved by the complainant or prosecution in case any of the conditions of bail imposed by the Court are being violated.

  • Important case law surrounding the concept of anticipatory bail. 
Sushila Agarwal v. State of Delhi (2020 SCC OnLine SC 98)
The Hon'ble court framed two questions:
1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail &
2. Whether life of anticipatory bail should end at the time and stage when the accused is summoned to court.
The Constitutional Bench of the Apex Court answered the first question by holding that there can be no time limit set for the Anticipatory Bail by the court granting the same. 
The five-judge bench unanimously held that " the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time."
Answering the second question the Hon'ble court held that "The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."
However, the SC did allow the Court discretionary powers to limit the period of anticipatory bail in case of special circumstances. 
Badresh Bipinbai Seth v. State of Gujarat (2016 1 SCC 152)
"The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. 
The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail."
The court observed that Section 438 and Article 21 goes hand in hand and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld the fundamental right of the citizen.