Right to Anticipatory Bail As A Fundamental Right in India

Author: Tanya Mehta

4th Year B.A. LL.B
Ramaiah Institute of Legal Studies, Bengaluru


Black’s Law Dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”(1)
Anticipatory bail means an application seeking permission from the court to be released if arrested by the police but only for the particular reason against which permission of anticipatory bail is asked by the accused. (2)Anticipatory Bail became part of the CrPC in 1973 after the 41st Law Commission Report (1969) recommended for the inclusion of such provision. It was included to protect the arbitrary violation of the right to personal liberty of the person. (3) Section 438 of the Code of Criminal Procedure, 1973 talks about the law on anticipatory bail. Sub-section (1) says, “ 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 are mainly three types of bail a person can apply depending on the nature of the case-
1.Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC.

2.Interim Bail: Interim bail is a bail granted for a short period. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.

3.Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-bailable offence, can apply for anticipatory bail. It is like an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before the arrest, and the police cannot arrest a person if the court has granted the anticipatory bail.


An accused does not have the right to apply for bail in case of a non-bailable offence. The power to release a person on bail in a non-bailable offence lies with the court.
 Section 437 of the CrPC lays down the power of the court to grant bail to a person even in a non-bailable offence.  Non-bailable offences under the IPC include sedition, waging or attempting to wage war against the government, counterfeit of Indian currency, adulteration of the drug, murder (Section 302), culpable homicide not amounting to murder (Section 304), dowry death (Section 304B), abetment of suicide, abetment of suicide, abduction of a child under 10, trafficking of a person, rape (Section 376), cruelty by husband or his relatives (Section 498A), etc.(4)
The conditions on which the court grants bail in a non-bailable offence

  1. If the accused is a woman or child, bail can be granted in a non-bailable matter.
  2. If there is a lack of adequate evidence, the court can grant bail in the non-bailable offence on discretion.
  3. If there is a delay in registering the FIR by the complainant.
  4. If the person accused is physically or gravely sick.
  5. If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.



In 1973, and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry, the Calcutta High Court explained the principle behind giving bail: “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.’’

Gurbaksh Singh Sibia vs the State of Punjab (1980) case: The Hon’ble Supreme Court ruled that “Sec. 438(1) should be interpreted in the light of Article 21 of the Indian Constitution which states the protection of life and personal liberty.”Granting of anticipatory Bail as a matter of right of an individual should not be limited by time.

Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: The Apex court overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time.”

SS Mhetre vs State of Maharashtra & Ors (2010) case:  The Hon’ble Supreme Court held that “life/duration of an order granting anticipatory Bail could not be curtailed.”

Finally, in the latest case of Sushila Agarwal v. State: The Hon’ble Supreme Court said that CrPc does not indicate that anticipatory bail must be time-bound. However, it is the Court’s discretion to use their power in peculiar cases.


Fundamental Rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. (9) Every case is different from one another, it is extremely case-specific. To narrow down anticipatory bail as a Fundamental Right gives a free pass to the grave crimes that one could commit. Though, in the eyes of the Law anyone charged with an offence is innocent unless proven guilty.
Currently, it gives the courts the power to decide if anticipatory bail could be granted seeing the nature, the gravity of the crime, the possibility of absconding during the trial and the previous track records of crimes, if any. Since no two cases are unlike, it makes more sense to have a checklist and leave it on the court to decide whether the case is worthy enough for anticipatory bail. The newest judgement is working towards the principle of natural justice and the protection of people who are in false cases.


The power of anticipatory needs to be exercised cautiously and only if the courts feel strongly about the fact that the person is being wrongly framed should it be allowed. The judicial process could face backlash and shake the confidence of the public in the system if done otherwise. 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 by threatening the other party or influencing the case.
Anticipatory bail is definitely for special cases, as the boxes need to be ticked for the applicant to be seen as innocent.




1.Black’s law Dictionary ‘Bail

2. Bare Act Live

3.Varkey Paily Madthikudiyil, AIR 1967 Ker 189

4.Law times journal- Bails under CrPc http://lawtimesjournal.in/bail-under-crpc/
5. Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry AIR 917, 1981 SCR (2) 661
6.Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.
7.Salauddin Abdul Samad Sheikh v. the State of Maharashtra, (1996) 1 SCC 667.

8.SS Mhetre vs State of Maharashtra & Ors (2010)
Supreme Court and Fundamental Rights -MP Jain 2015  

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