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Title : Anticipatory Bail (GS II)

Date : Nov 23, 2021

Description :

Topic à Indian Constitution and Criminal Procedure Code (CrPC & IPC)


  • What is Anticipatory Bail, and how does it work:


  • When the CrPC was revised in 1973, Section 438 was included, allowing for anticipatory bail.
  • Section 438 is a procedural rule that protects each individual's right to personal liberty by granting them the benefit of the presumption of innocence.


  • In contrast to ordinary bail, which is granted to a person who has been arrested, anticipatory bail requires a person to be released on bond before an arrest has been made.


  • Who is eligible to apply:


  • Under Section 438 of the Code of Criminal Procedure of 1973:
  • "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," reads sub-section (1) of the provision.


  • Only the Sessions Court and the High Court have the authority to award anticipatory bail under this law.


  • Significance:


  • The rationale for Section 438's inclusion in the Code was parliamentary recognition of the importance of personal liberty in a free and democratic society.


  • Parliament wanted to promote personal liberty and give precedence to a fundamental element of criminal law, which states that everyone is presumed innocent until proven guilty.


  • Every individual's most prized possessions are life and liberty. Every human being has an innate need for freedom.


  • A five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud declared in the 1980 case Gurbaksh Singh Sibbia versus State of Punjab that S. 438 (1) should be interpreted in light of Article 21 of the Constitution (protection of life and personal liberty).


  • Need:


  • Arbitrary arrests continue to be a problem in the country, so the courts' discretionary power to grant anticipatory bail should not be limited, and protection should be provided until the end of the trial.
  • Aside from that, there's the threat of arbitrary and harsh arrests, which are used much too frequently to harass and humiliate civilians.


  • Views of Judiciary on the Anticipatory Bail:


  • A Supreme Court constitutional panel has declared that anticipatory bail cannot be limited to a set amount of time and can last till the end of the trial.
  • The decision came in the matter of Sushila Aggarwal v. State of NCT of Delhi, in which a three-judge bench was asked to rule on the scope of Section 438 of the Code of Criminal Procedure (CrPC), which allows for anticipatory bail.
  • The Court made the following observations:


  • If there are any unique circumstances that require the court to limit the duration of anticipatory bail, the court has the authority to do so. Nothing in the Criminal Procedure Code (CrPC) mandates or obligates courts to impose time limits on remedies.
  • When Parliament has decided that it is not appropriate to limit people' rights, the SC should not limit the authority granted to courts in the area of anticipatory bail.
  • A person can file an anticipatory bail plea even before the FIR is filed.
  • While granting anticipatory bail, the court should consider the nature and gravity of the offence before imposing any conditions on the petitioner.


Tags : Cr PC, supreme court

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