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The concept of anticipatory bail

Topics Covered: Separation of powers between various organs dispute redressal mechanisms and institutions.

The concept of anticipatory bail:


The Supreme Court has resolved a dichotomy in approach of high courts and ruled that Courts in “extraordinary circumstances” have the discretion to grant protection from arrest to accused even while denying them anticipatory bail, but the power cannot be exercised in an untrammelled manner, and the order will have to be a reasoned one.


The court was hearing appeals against two High Court orders which, while rejecting the prayer of the accused for anticipatory bail, had asked them to surrender before the trial court and file a regular bail application within 90 days, and protected them from any coercive action during this period.

What has the Supreme Court ruled?

  1. HCs and SC are given powers to grant anticipatory bail to the accused because of the premium that the Constitution places on the right to liberty guaranteed under Article 21.
  2. The grant or rejection of an application under CrPC has a direct bearing on the right to life and liberty of an individual. Therefore, the provision needs to be read liberally, and considering its beneficial nature. The courts must not read in restrictions that the legislature has not explicitly provided for.
  3. In doing so, the court may also exercise its powers under Article 142 of the Constitution to pass such an order.

Need for such protection:

An accused, besides being an accused, may also be the primary caregiver or sole breadwinner of the family. His arrest may leave his loved ones in a state of starvation and neglect.

  • In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

The concept of anticipatory bail:

  • The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
  • As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest is made.
  • Time limit: The Supreme Court (SC) in Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial.
  • It is issued only by the Sessions Court and High Court.


  • The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.
  • Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.



Insta Curious:

  • Do you know about the Substantive Rights that Flow From Article 21? Read here:
  • Please know a few important facts related to the issue of Undertrials in India. It’s important. Read Here.



Prelims Link:

  1. Various rights under Article 21.
  2. What is a bail?
  3. What is an anticipatory bail?
  4. Differences between bailable and non-bailable offences.
  5. Conditions for Granting Anticipatory Bail.
  6. Time limit on anticipatory bail.

Mains Link:

Discuss the need for and significance of anticipatory bail.

Sources: the Hindu.