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Code of Criminal Procedure

This document discusses anticipatory bail under Section 438 of the Indian Code of Criminal Procedure. It provides an overview of anticipatory bail, including that it allows an individual to request bail before being accused of a non-bailable offense. It outlines some of the conditions considered for granting anticipatory bail, such as making oneself available for police interrogation. The document also discusses circumstances where anticipatory bail may not be granted, such as for certain offenses. It analyzes some case laws related to anticipatory bail from various states in India. In conclusion, it states that Section 438 concerns personal liberty and that an accused person need not make a special case for anticipatory bail to be exercised.

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bernard
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225 views

Code of Criminal Procedure

This document discusses anticipatory bail under Section 438 of the Indian Code of Criminal Procedure. It provides an overview of anticipatory bail, including that it allows an individual to request bail before being accused of a non-bailable offense. It outlines some of the conditions considered for granting anticipatory bail, such as making oneself available for police interrogation. The document also discusses circumstances where anticipatory bail may not be granted, such as for certain offenses. It analyzes some case laws related to anticipatory bail from various states in India. In conclusion, it states that Section 438 concerns personal liberty and that an accused person need not make a special case for anticipatory bail to be exercised.

Uploaded by

bernard
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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AMITY LAW SCHOOL, KOLKATA

PROJECT ON THE CODE OF CRIMINAL PROCEDURE, 1973

TOPIC: ANTICIPATORY BAIL

NAME: BERNARD SHUVAM GOMES ;

SECTION: A

SEMESTER: 5

YEAR: 3RD

COURSE: B.A. LLB(H)

BATCH-2016-2021

1
CONTENTS

1. ANTICIPATORY BAIL
2. CONDITIONS FOR GRANTING ANTICIPATORY BAIL
3. CASE LAWS
4. CONCLUSION

2
ANTICIPATORY BAIL

Under Section 438 of the Criminal Procedure Code,1973 there is a provision for a person to
seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in
anticipation or in expectation of being named or accused of having committed a non-bailable
offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges
made against him/her, most commonly due to professional or personal enmity, as it ensures the
release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High
Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason,
apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in
the petition the bail is granted. Hence if and when the person is arrested, he/she will be
immediately released on the basis of the anticipatory bail.

CONDITIONS FOR GRANTING ANTICIPATORY BAIL

Conditions that are taken into consideration by the court when granting anticipatory bail include,
but are not limited to:

 The person will make him/herself available for interrogation by the police as and when
required by them.

 The individual shall not directly or indirectly  make any threat, promise or offer any bribe
to any person who is connected to the case or knows the facts about the case, so as to keep them
quiet or to get them to change their report of facts to the court or the police.  

  An assurance that the person shall not leave India without prior permission from the
court.

3
WHEN CAN AN ANTICIPATORY BAIL BE NOT GRANTED?

There are certain circumstances where applications for anticipatory bail are normally refused.
These include:

 For offences/contraventions under certain specific statutes like the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules,
1971.

 The provisions of s. 438 are normally refused to those accused of particularly heinous
offences like murder and rape.

CASE LAWS

Anticipatory Bail In Karnataka


Shri H D Kumaraswamy vs. State of Karnataka
In this case, hearing both sides, the Court granted interim anticipatory bail directing the
respondent, Lokayuktha police to release the petitioner… surety as per the terms of the interim
anticipatory bail order granted by this Court.

Anticipatory Bail In Maharashtra


SC has expressed disapproval of the practice of trial courts giving regular bail accused on the
basis of High Courts order to grant interim anticipatory bail.
Siddharam Satlingappa Mhetre Vs State of Maharashtra
Mr. Bhushan submitted that the appellant has been implicated in a false case and apart from that
he has already joined the investigation and he is not likely to abscond, or otherwise misuse the
liberty while on bail, therefore, there was no justification to decline anticipatory bail to the
appellant.

Anticipatory Bail In AP

4
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 in the event of arrest, a person
shall be released on bail. In many cases, husbands and family members arm themselves with
anticipatory bail, even when discussions are going on between husband's and wife's families for
reconciliation for any family dispute. This vitiates the entire atmosphere making reconciliation
even more challenging. Manifestly, there is no question of release on bail unless a person is
arrested.

K. Gajendra Baidu Vs State of A.P.


The necessity for granting anticipatory bail arises mainly because sometimes influential persons
try to implicate their rivals in false cases for certain purpose. There are reasonable grounds for
holding that a person accused of an offense is not likely to abscond or otherwise misuse his
liberty while on bail.

Anticipatory Bail In Punjab


Merely because a serious Charge is added at a later stage is not by itself not a ground to refuse
anticipatory bail. SC read the judgment and thus held there would be a liberty to move the same
Court for cancellation or modifying the conditions of anticipatory bail at any time if liberty
granted by the court is misused.

Yashpal Kaushal Vs. State of Punjab


High Court held that where there is absolutely no material to justify the commission of an
offense under the act. It would be permissible to debate the accused from applying for
anticipatory bail.

5
CONCLUSION

Section 438 is a procedural provision which is concerned with personal liberty of an individual,
entitled to the benefit of the presumption of innocent since he is not, on the date of his
application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail.
Although the power to release on anticipatory bail can be described as of an "extraordinary"
character this would not justify the conclusion that the power must be exercised in exceptional
cases only. It is not necessary that the accused must make out a special case for the exercise of
the power to grant anticipatory bail. Thus this paper dealt with how administration done in
various States in India regards to Anticipatory Bail.

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