University Institute of Legal
Dr. Amrit Dhaliwal
B.com LL.B (Hons.)
Code of Criminal
Comments on the case
Jai Prakash Singh v. State of Bihar, 2012
(Question regarding grant of Anticipatory Bail for serious offences)
This project has been made for the purpose of covering a part of
the syllabus of the Code of Criminal Procedure of India as prescribed by
I hereby, acknowledge my mentor, Dr. Amrit Dhaliwal, for her
expert guidance and views in each and every aspect.
Without her help, making of this project would never have been
B.com LL.B (hons.)
Table of Cases
1. Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors., 2010
2. Brij Nandan Jaiswal v. Munna Jaiswal & Anr., 2008
3. Sumit Mehta v. State of N.C.T. of Delhi, 2013
4. Balchand Jain Vs. State of M.P., 1976
5. Bihar mid-day meal tragedy case , 17th July, 2013
6. Gudikanti Narasimhulu case (1977).
7. Gurbaksh Singh Sibbia v The State of Punjab, AIR 1980,
8. Maneka Gandhi v. Union of India, 1978
The case in nutshell is that Jai Prakash Singh, the appellant is the brother
of the deceased Shiv Prakash Singh, who lodged the FIR on 5.6.2011 after 2 hours
of his brother’s death. The FIR was lodged under Sections 302/34 of Indian Penal
Code, 1860 (hereinafter referred as ‘I.P.C’). It was reported that when after
closing his medicine shop at 10 PM the deceased was going home on his
motorcycle, he was chased by the aforesaid respondents on a motorcycle and
was then stopped by them. The respondents had opened indiscriminate firing at
the deceased which resulted in his death on the spot after receiving 5 bullet
injuries on his person. It was observed through the FIR that the said respondents
were having some dispute with the complainant and the deceased and had also
threatened them to kill them few days back.
The respondents had applied for the anticipatory bail at the Sessions
Court but, however, their application was rejected by the learned Sessions Judge
after considering the facts, witnesses, and the time of lodging of FIR and the
The said respondents then filed Miscellaneous Criminal Petitions for the
grant of anticipatory bail under Section 438 Cr.P.C. before the Patna High Court.
The said applications were granted anticipatory bail on the grounds that the FIR
itself made evident that there was some previous dispute between the parties
which led to a quarrel and the accused had fair antecedents.
The Supreme Court considering the aspects of FIR and anticipatory bail,
and setting aside the High Court’s decision, cancelled the grant of anticipatory bail
to the respondents and made clear the grounds on which the anticipatory bail
cannot be granted at all.
Facts and Judgments
(As in Supreme Court Reports,2012)
Jai Prakash Singh Vs. The State of Bihar & ANR. etc.
[Criminal Appeal Nos. 525-526 of 2012 arising out of SLP (CRL.) Nos.304-305 of 2012]
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. These criminal appeals have been preferred against the judgments and orders dated
19.9.2011 and 25.10.2011 passed by the High Court of Judicature at Patna in Crl. Misc. Nos..
28318 and 33546 of 2011, by which the High Court has enlarged the respondents Rajesh
Kumar Singh @ Pappu Singh and Sanjay Kumar Singh @ Mintu Singh on anticipatory bail
under Section 438 of Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.')
3. Facts and circumstances giving rise to these appeals are that :
A. On 5.6.2011, the appellant Jai Prakash Singh lodged an FIR of Laheria Sarai Case No. 304 of
2011 under Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred as 'I.P.C.'),
alleging therein that the informant/complainant and his elder brother Shiv Prakash Singh
were having a medicine shop for the last 2-3 years. On 5.6.2011 around 10.00 p.m., his
brother closed the shop and proceeded towards his house on his motorcycle. He was
chased by the aforesaid respondents on a motorcycle and stopped. They opened
indiscriminate firing and thus, he died on the spot. In the FIR, it was also alleged that the
said respondents had threatened the complainant to kill him and his brother 10-15 days ago
as there had been some old dispute of accounts between the parties.
B. As per the post-mortem report, the deceased received 5 bullet injuries on his person and he
died because of the same. The said respondents had applied for anticipatory bail, however,
their applications stood rejected by the learned Sessions Judge vide order dated 11.8.2011
observing that in the investigation, a strong motive had been found against the said
respondents and there were certain affidavits of eye-witnesses to the effect that the said
respondents were the assailants.
C. Aggrieved, the said respondents filed Miscellaneous Criminal Petitions for grant of
anticipatory bail under Section 438 Cr.P.C. before the Patna High Court. The said
applications have been allowed passing the impugned orders granting them anticipatory
bail on the grounds that the FIR itself made it evident that there was some previous dispute
between the parties which led to a quarrel and the accused had fair antecedents. Hence,
4. Shri Dvijendra Kumar Pandey, learned counsel appearing for the appellant, has submitted
that the High Court committed grave error while granting anticipatory bail to the said
respondents without considering the gravity of the offence and the manner in which the
offence had been committed and without realising that the FIR had been lodged promptly
within a period of two hours of the incident and both the said accused persons had been
named therein. Thus, the impugned judgments and orders are liable to be set aside.
5. On the contrary, Ms. Kavita Jha and Ms. Prerna Singh, learned counsel appearing for the said
respondents and the State of Bihar, have opposed the appeals contending that the High
Court has imposed very serious conditions while granting the anticipatory bail. The order
does not require any interference at this stage. The appeals have no merit and are liable to
6. We have considered the rival submissions made by the learned counsel appearing for the
parties and perused the record.
7. The provisions of Section 438 Cr.P.C. lay down guidelines for considering the anticipatory bail
application, which read as under: "438. Direction for grant of bail to person apprehending
arrest.- (1) Where 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 that in the event of such arrest, he
shall be released on bail; and that court may, after taking into consideration, inter alia, the
following factors, namely:i. The nature and gravity of the accusation;
ii. The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a court in respect of any cognizable offence;
iii. the possibility of the applicant to flee from justice; and
iv. where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order
for the grant of anticipatory bail."
8. In view of the above, it is mandatory on the part of the court to ensure the compliance of the
pre-requisite conditions for grant of anticipatory bail including the nature and gravity of the
9. Admittedly, the deceased had received several gun shot injuries. According to the postmortem report, the following injuries were found on the person of the deceased: "
A . Abrasions:(1) 1 1/4" x1/4" 1"- right and enter post of forehead (2) 1/4" x 1/4" 1/2 "x 1/4"
and 1/2" X 1/10" in the lower 1/2 of the left leg (3) 1/4 " x l/4" right kneecap.
B. Fire Arm injuries
1. entry wound 1/4 dia with inverted contused margins and abrasions. Collar placed on the
outer aspect of the right arm 2" proxical to elbow - passed thro' arms breaking the bone
into pieces and lacerating the to come out thro' exit wound 1/3" x 1/9" with even in the
middle and inner portion of arm. Another entry wound, 1/5" in dia with abrasion collar,
inverted margin and tattooing around (1-1/2 " x 1-1/2") was also present 1" distal to the
preventing entry wound and come out through the same exit wound.
2. Entry wound - 1/4 " dia with inverted contused margin an abrasion collar in right anterior
axillary line 5" below nipple - right 8th intercortal space- right lobe of liver mes entry- small
intestine at one place - came out through exit wound 1/3" in dia in lower left iliac fosa in the
axilary line with inverted margin.
3. Entry wound 1/4" dia with contused inverted margins and abrasion collar placed in the left
iliac fosa- color at one place- small intestine at one place- came out this exit would >" x 1/2"
on right abdominal flank with everted margin, in anterior oscillary line 9" bellow nipple.
4. Entry would 1/3" in dia with contused inverted margin and abrasion collar over upper and
inner part of left and soft tissue of the arm to came out through the exit wound 1/3" in dia
with everted margin on the back of left arm 3" above (proximal) elbow.
5. Entry wound 1/4" in dia on the back of abdomen 4" outer to midline at T12 level, with
inverted and contused margins and abrasions collar mesentry large intestine at one place
exit through a wound 1/4" dia with inverted margin in the hand.
Along the tracks, the. tissue were lacerated. Fluid blood red clots were seen inside abdominal
cavity about 1000 cc in volume. Organs appeared pale. Both sides of the heart were
partially full and the urinary bladder was found full. Stomach contained about cc food
without alcoholic smell.
Skull and brain showed nothing particular. Opinion Death resulted from hemorrhage and both
due to fire arm injuries mentioned above."
10. The learned Sessions Judge did not consider it proper to grant anticipatory bail, rather
rejected the same after considering the submissions made on behalf of the said accused
persons observing that the court had perused the Case Diary, para 90 of which revealed a
very strong motive. There was material against the said accused in the case diary. The
deceased had received multiple abrasions and 5 gun shot injuries, thus, it was not a fit case
to enlarge the accused on anticipatory bail.
11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time
of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of
the version given by the informant/complainant.
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be
substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in
respect of the commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of actual culprits and the part
played by them as well as the names of eye- witnesses present at the scene of occurrence.
If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in
of the introduction of coloured version, exaggerated account or concocted story as a result
of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the
FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR
reflects the first hand account of what has actually happened, and who was responsible for
the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State
of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC
186; and Takdir Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37).
13. There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as
appreciation of the case as to whether or not a bail is to be granted, is concerned. However,
neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory
bail being an extraordinary privilege should be granted only in exceptional cases. The
judicial discretion conferred upon the court has to be properly exercised after proper
application of mind to decide whether it is a fit case for grant of anticipatory bail.
14. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., AIR 1995 SC 1198, this Court
considered the nature of the right of anticipatory bail and observed as under: "We find it
difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an
integral part of Article 21. In the first place, there was no provision similar to Section 438 in
the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of
right. It is essentially a statutory right conferred long after the coming into force of the
Constitution. It cannot be considered as an essential ingredient of Article 21 of the
Constitution. And its non-application to a certain special category of offences cannot be
considered as violative of Article 21."
15. While deciding the aforesaid cases, this Court referred to the 41st Report of the Indian Law
Commission dated 24th September, 1969 recommending the introduction of a provision for
grant of anticipatory bail wherein it has been observed that "power to grant anticipatory
bail should be exercised in very exceptional cases".
16. Ms. Kavita Jha, learned counsel appearing for the accused/respondents has vehemently
advanced the arguments on the concept of life and liberty enshrined in Article 21 of the
Constitution of India placing a very heavy reliance on the observations made by this Court in
Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312, and
submitted that unless the custodial interrogation is warranted in the facts and
circumstances of the case, not granting anticipatory bail amounts to denial of the rights
conferred upon a citizen/person under Article 21 of the Constitution. We are afraid the law
as referred to hereinabove does not support the case as canvassed by learned counsel for
the accused-respondents. More so, the Constitution Bench of this Court in Kartar Singh v.
State of Punjab, (1994) 3 SCC 569, while summing up the law in para 368, inter-alia, held as
under: "Section 20(7) of the TADA Act excluding the application of Section 438 of the Code
of Criminal Procedure in relation to any case under the Act and the Rules made thereunder,
cannot be said to have deprived the personal liberty of a person as enshrined in Article 21
of the Constitution." (See also: Narcotics Control Bureau v. Dilip Prahlad Namade (2004) 3
SCC 619). Therefore, we are not impressed by the submissions so advanced by learned
counsel for the accused-respondents.
17. This Court in Siddharam Satlingappa Mhetre (supra) after considering the earlier judgments
of this Court laid down certain factors and parameters to be considered while considering
application for anticipatory bail : "122. The following factors and parameters can be taken
into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where
the accusations have been made only with the object of injuring or humiliating the applicant
by arresting him or her.
v. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very
large number of people.
vi. The courts must evaluate the entire available material against the accused very carefully.
The court must also clearly comprehend the exact role of the accused in the case. The cases
in which accused is implicated with the help of sections 34 and 149 of the Indian Penal
Code, the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
vii. While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment, humiliation and unjustified
detention of the accused;
viii. The court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
ix. Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail and in the event
of there being some doubt as to the genuineness of the prosecution, in the normal course
of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases
where arresting the accused is imperative in the facts and circumstances of that case. 124.
The court must carefully examine the entire available record and particularly the allegations
which have been directly attributed to the accused and these allegations are corroborated
by other material and circumstances on record."
18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and
further while granting such relief, the court must record the reasons therefore. Anticipatory
bail can be granted only in exceptional circumstances where the court is prima facie of the
view that the applicant has falsely been enroped in the crime and would not misuse his
liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of
Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and
Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305).
19. The case at hand, if considered in the light of aforesaid settled legal proposition, we reach
an inescapable conclusion that the High Court did not apply any of the aforesaid
parameters, rather dealt with a very serious matter in a most casual and cavalier manner
and showed undeserving and unwarranted sympathy towards the accused.
20. The High Court erred in not considering the case in correct perspective and allowed the said
applications on the grounds that in the FIR some old disputes had been referred to and the
accused had fair antecedents. The relevant part of the High Court judgment impugned
before us reads as under: "Considering that the only allegation in the First Information
Report is that there was previously some dispute between the deceased and the petitioner
and they had quarrelled on account of the same, let the petitioner above named, who has
fair antecedents, be released on anticipatory bail........"
21. In the facts and circumstances of this case, we are of the considered opinion that it was not
a fit case for grant of anticipatory bail. The High Court ought to have exercised its
extraordinary jurisdiction following the parameters laid down by this Court in above
referred to judicial pronouncements, considering the nature and gravity of the offence and
as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very
lightly brushed aside the fact that FIR had been lodged spontaneously and further did not
record any reason as how the pre-requisite conditions incorporated in the statutory
provision itself stood fulfilled. Nor did the court consider as to whether custodial
interrogation was required. The court may not exercise its discretion in derogation of
established principles of law, rather it has to be in strict adherence to them. Discretion has
to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The
court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors
the grounds provided in Section 438 Cr.P.C. itself suffers from non- application of mind and
therefore, cannot be sustained in the eyes of law.
22. The impugned judgments and orders dated 19.9.2011 and 25.10.2011 passed by the High
Court of Judicature at Patna in Crl. Misc. Nos.28318 and 33546 of 2011 are, thus, set aside.
The anticipatory bail granted to the said respondents is cancelled. Needless to say that in
case the said respondents apply for regular bail, the same would be considered in
accordance with law. With the aforesaid observations, appeals stand disposed of.
..........................................J. (Dr. B.S. CHAUHAN)
..........................................J. (JAGDISH SINGH KHEHAR)
March 14, 20121
http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1940, 29 Sept,2013, 2.34 AM
Questions under Consideration
1. What is an Anticipatory Bail?
2. Why was the concept of anticipatory bail introduced in the Indian Criminal
3. What are the conditions to be satisfied to grant an Anticipatory Bail and
which law provides for it?
4. When can an Anticipatory Bail be granted?
5. When can an Anticipatory Bail be not granted?
6. Can court exercise its discretion while granting Anticipatory Bail?
7. Can the Anticipatory Bail once granted be cancelled by the Court?
8. What if the Sessions Court rejects the application and the applicant is
9. Is promptness in filing of FIR was the main reason for cancellation of the
grant for Anticipatory Bail in the said case?
10. Is not granting of Anticipatory Bail in case of serious crimes is violative of
right under Article 21 of the Indian Constitution?
1. What is Anticipatory Bail?
Anticipatory bail, a term not found in any Indian legislation, refers to a
pre-arrest order passed by a court that says that in the event a person is arrested,
he is to be granted bail. As observed in Balchand Jain Vs. State of M.P.,
19762,`anticipatory bail' means `bail in anticipation of arrest'. The expression
`anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted
by the Court in anticipation of arrest.
The ‘anticipatory’ labeling of the order can be misleading as it is not an
order which grants a person bail before he is arrested as bail cannot come into
effect before a person is arrested. Having said that, the fundamental difference
between an order for bail and one for anticipatory bail is that the former is
granted only after arrest (and becomes operative subsequently) but the latter is
granted before arrest and hence is operative from the moment of arrest. One also
has to understand that regular bail comes into operation once a person is
remanded to judicial custody but the anticipatory bail comes into operation
immediately on arrest and prior to being remanded to police custody and or
In Balchand v. State of MP4, it was held that the object of s. 438 is that the
moment a person is arrested, if he had already obtained an order from the
Sessions Judge or the High Court, he would be released immediately without
having to undergo the rigorous of jail even for a few days.
Further explanation of Anticipatory bail was given by Supreme Court in the
case Gurbaksh Singh Sibbia v The State of Punjab5, AIR 1980, SUPREME COURT
1977 AIR 366, 1977 SCR (2) 52
http://www.academia.edu/2761041/Anticipatory_Bail, 10 Oct, 2013, 8.57 PM
1980 AIR 1632, 1980 SCR (3) 383
1632, explaining that a person can apply for anticipatory bail even after the FIR is
filed, but not if the person has been arrested.6
In India, anticipatory bail can only be invoked if a person is apprehending
arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code).
A non-bailable offence is one for which the police if not empowered to release
the arrested person on bail (except under certain special circumstance not dealt
2. Why was the concept of anticipatory bail introduced in the
Indian Criminal Laws?
The Code of Criminal Procedure, 1898 did not contain any specific provision
of anticipatory bail. Under the old Code, there was a sharp difference of opinion
amongst the various High Courts on the question as to whether the courts had an
inherent power to pass an order of bail in anticipation of arrest, the
preponderance of view being that it did not have such power.
The necessity of introduction of Section 438 of the Criminal Procedure Code
was arises mainly because sometimes influential person try to implicate their
rivals in false causes for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days.8
In recent times, with the accentuation of political rivalry, this tendency is
showing signs of steady increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of an offence is not likely to
abscond, or otherwise misuse his liberty while on bail, there seems no
http://www.keralalawyer.com/contents/anticipitory_bail.php, 30 Sept, 2013, 12.17 AM
Sept., 2013, 12.02 AM
41 Report, Law Commission of India, 24 September, 1969, para 39.9, Volume I
justification to require him first to submit to custody, remain in prison for some
days and then apply for bail.9
The issue of bail is one of liberty, justice, public safety and burden of the
public treasury, all of which insist that a developed jurisprudence of bail is integral
to a socially sensitized judicial process. — Justice V.R. Krishna Iyer, in the
Gudikanti Narasimhulu case (1977). 10
3. What is the law concerning Anticipatory Bail?
The provisions concerning anticipatory bail are to be found in section 438
of the Criminal Procedure Code (CrPC), 1973. The section is reproduced as
“438. Direction for grant of bail to person apprehending arrest.
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 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 , and that Court may, after taking into consideration, inter alia,
the following factors:i. the nature and gravity or seriousness of the accusation as apprehended
by the applicant;
ii. the antecedents of the applicant including the fact as to whether he
has, on conviction by a Court, previously undergone imprisonment for a
term in respect of any cognizable offence;
iii. the likely object of the accusation to humiliate or malign the reputation
of the of the applicant by having him so arrested, and
http://myblog-rajbhu.blogspot.in/2012/12/anticipatory-bail-section-438-crpc-1973.html, 30 Sept.,2013,
Gudikanti Narasimhulu v. Public Prosecutor, A.P., (1978) I SCC 240
the possibility of the applicant, if granted anticipatory bail, fleeing from
either reject the application forthwith or issue an interim order for the grant of
Provided that, where the High Court or as the case may be, the Court of
Sessions, has not passed any interim order under this sub-section or has
rejected the application for grant of anticipatory bail, it shall be open to an
officer in charge of a police station to arrest, without warrant the applicant on
the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall
forthwith cause a notice being not less than seven days notice, together with a
copy of such order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public Prosecutor a
reasonable opportunity of being heard when the application shall be finally
heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at
the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.]
When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the
facts of the particular case, as it may thinks fit, including :
A condition that the person shall make himself available for
interrogation by a police officer and when required;
A condition that the person shall not, directly or indirectly,- make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts to the court
or to any police officer,
A condition that the person shall not leave India without the previous
permission of the court;
Such other condition as may be imposed under sub-section (3) of
section 437, as if the bail were granted -under that section.
If such person is thereafter arrested without warrant by an officer in charge of
a police station on such accusation, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give bail, he shall be
released on bail, and if a Magistrate taking cognizance of such offence decides
that a warrant should issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of the court under
Sub-section (1) of section 438 mainly talks about what anticipatory bail is,
who can apply for it (those apprehending arrest for non-bailable offences) and
who is to be applied to (the Court of Sessions or the High Court).
Sub-section (2) talks about how the Court issuing an order under s. 438 can
attach certain riders to it. These are listed out as ss. 438(2) (i), 438(2) (ii), 438(2)
(iii) and 438(2) (iv).
Sub-section (3) empowers:
i. The Police to grant bail if the arrested person is arrested without warrant.
ii. The magistrate to issue a bailable warrant (in light of an anticipatory bail order).
4. When can an Anticipatory bail be granted?
It can be given when a person apprehends arrest for a non-bailable offence
(refer to the First Schedule of CrPC for the list of offences labelled thus). It is
given in those circumstances when the court believes that there is a possibility
that the accused has been falsely implicated and that his freedom will not hamper
the investigation of the crime. Having said that, bail granted under s. 438 may be
cancelled at any time if the investigation is hampered or if a condition under the
order is violated by the arrested person.
It is important to note that the attendance of the person apprehending arrest
is compulsory at the final hearing.
In the present case, peeping into the facts and evidences of the case, the High
Court granted the anticipatory bail to the defendants , explaining that the details
lodged in the FIR proved that there was an existing past rivalry between the
accused and the appellants and the condition could be as if the defendants were
not at fault . Contrary to this decision, the Supreme Court dismissed the
application for anticipatory bail explaining that promptness in lodging of the FIR
was enough to prove that the complaint was reliable and no false accusation was
labeled on the defendants and held that the decision.
5. 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 Defense of India Rules, 1971.
The provisions of s. 438 are normally refused to those accused of
particularly heinous offences like murder and rape.
In The Court observed that “We do not see why the provisions of Section
438 Cr.P.C. should be suspected as containing something volatile or incendiary,
which needs to be handled with the greatest care and caution imaginable.”
The Constitution Bench in Sibbia's case 11has clearly stated that grant and
refusal is discretionary and it should depend on the facts and circumstances of
In the recent Bihar mid-day meal tragedy case held on 17th July 2013, in
which 23 children died after eating the contaminated midday meal served in a
government school, the district court denied the granting of anticipatory bail to
the husband of the Principal of the school after considering the facts and
circumstances of the case. In this case, Meena Devi, the Principal of the school
and her husband (the Main accused), Arun Kumar, are filed under murder and
criminal conspiracy, were absconding since the tragedy took place. When the
Principal got arrested, Arun Kumar filed for anticipatory bail.12
6. Can court exercise its discretion while granting Anticipatory Bail?
Yes the Courts can exercise their discretion while granting Anticipatory Bail
but the discretion should not be arbitrary and should be strictly according to the
rules laid down in the laws.
In Balchand Jain Vs. State of M.P., 197613 the Court went on to observe
that the power of granting `anticipatory bail' is somewhat extraordinary in
character and it is only in `exceptional cases' where it appears that a person might
be falsely implicated, or a frivolous case might be launched against him, or "there
are reasonable grounds for holding that a person accused of an offence is not
likely to abscond, or otherwise misuse his liberty while on bail" that such power
may be exercised. The power being rather unusual in nature, it is entrusted only
to the higher echelons of judicial service, i.e. a Court of Session and the High
principal-files-anticipatory-bail, 6 October, 2013, 11.38 AM
nhyrumedfbd.html, 6 October, 2013, 11.39 AM
October, 2013, 11.50 AM
The words in s. 438 which proclaim 'for a direction under this section' and
'Court may, if it thinks fit, direct' clearly shows that the Court can grant the
anticipatory bail if it is satisfied and the decision has to be guided by a large
number of considerations, including those mentioned in s. 437.
In Gurbaksh Singh Sibbia’s case (supra), the Constitution Bench was called
upon to consider correctness or otherwise of principles laid down by the Full
Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of
Punjab. The Full Bench of the High Court summarized the law relating to
anticipatory bail as reflected in Section 438 of the Code and laid down eight
principles which were to be kept in view while exercising discretionary power to
grant anticipatory bail.
In Sumit Mehta v. State of N.C.T. of Delhi, 201314, the Supreme Court held
that the direction of the High Court to deposit 1 Crore (in the name of the
complainant and further directing to keep the FDR with the investigating officer
(IO), for the offences alleged to have committed under Section 420, 467 , 468 and
471 of IPC) as a condition precedent for granting anticipatory bail is evidently
onerous and unreasonable.
The Court said “ The words “any condition” used in the provision
should not be regarded as conferring absolute power on a Court of law to
impose any condition that it chooses to impose. Any condition has to be
interpreted as a reasonable condition acceptable in the facts permissible in
the circumstance and effective in the pragmatic sense and should not defeat the
order of grant of bail. We are of the view that the present facts and
circumstances of the case do not warrant such extreme condition to be
CRIMINAL APPEAL NO.1436 OF 2013, SC
6 October, 2013 3.16PM
7. Can the Anticipatory Bail once granted be cancelled by the Court?
Yes, if the Court which has the power to grant anticipatory bail also has the
power to cancel the same if the prosecution/police authorities are able to show
as to how the person released on anticipatory bail is not abiding by the conditions
put down by the Court and also if the person given the benefit of anticipatory bail
is not co-operating with the police authorities for investigation.
This has been observed in Jai Prakash Singh’s case that since Supreme
Court was not justified by the decision taken by the High Court, the SC using its
discretionary power had cancelled the anticipatory bail which had been earlier
granted by the HC.
In Brij Nandan Jaiswal v. Munna Jaiswal & Anr., 200816, it was observed that
it is now a settled law that complainant can always question the order granting
bail if the said order is not validly passed. It is not as if once a bail is granted by
any court, the only way is to get it cancelled on account of its misuse.
What if the Sessions Court rejects the application and the applicant
Let us assume that the application for anticipatory moved in the Sessions
Court is rejected and the applicant still apprehends that before moving his bail
application in the Hon’ble High Court, the police arrest the applicant, in such
instances well the lawyer can move an application praying for interim protection
to be extended till filing of the same before the High Court. But, this is a
discretionary power in the hands of the Sessions Judges and needs a good
CRIMINAL APPEAL NO. 2087/2008
Arising out of SLP(Crl.) No. 5126 OF 2007
Lastly the most important thing is that anticipatory bail should not be
moved merely because the applicant feels to do so because it is not the provision
which allows the crime to be committed and the protection be given but only in
cases where there is a substantial chance of the applicant being falsely involved or
the liberty of the applicant shall stand at stake for no fault of his own. Lastly I
would personally like to state that the weapon namely the anticipatory bail which
has been vested in the hand of the litigants, is for sure a double edged weapon
which requires to be handled very cautiously as it make give relief to the one who
really makes out his case but can be really harsh if the same stands rejected and
would prove a boon to the investigating authorities.
9. Is promptness in filing of FIR was the main reason for cancellation of the
grant for Anticipatory Bail in the said case?
Yes, the promptness in filing of FIR was the main reason for cancellation of
the grant of Anticipatory bail in Jai Prakash’s case because it was held by SC that
since the FIR was filed spontaneously, therefore it was more reliable than any
Promptness in filing of FIR is assumed to be free from bias, reliable and
without any unnecessary modifications and therefore this fact as such cannot be
ignored while granting the anticipatory bail to the defendants.
In Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors., 2010,17
the anticipatory bail was granted by the SC on the account that the FIR was
lodged eight days after the incident took place. It was held that proper analysis of
the averments in the FIR leads to irresistible conclusion that the entire
prosecution story seems to be a cock and bull story and no reliance can be placed
on such a concocted version.
CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009), SC
Is not granting of Anticipatory Bail in case of serious crimes violative of
right under Article 21 of the Indian Constitution?
The society has a vital interest in grant or refusal of bail because every
criminal offence is the offence against the State. The order granting or refusing
bail must reflect perfect balance between the conflicting interests, namely,
sanctity of individual liberty and the interest of the society. The law of bails
dovetails two conflicting interests namely, on the one hand, the requirements of
shielding the society from the hazards of those committing crimes and
potentiality of repeating the same crime while on bail and on the other hand
absolute adherence of the fundamental principle of criminal jurisprudence
regarding presumption of innocence of an accused until he is found guilty and
the sanctity of individual liberty.
"Once a provision of law enacted by Legislature is held to be not
unconstitutional or not violative of Article 21 of the Constitution, the same
stands on statute book and has to be read as it is and court while interpreting
the same, cannot read what is not provided for in the provision nor can it ignore
what is provided for in the provision,"
-Justice A.L. Dave while deciding the question of Anticipatory Bail.18
It has been held in Jai Prakash’s case that not granting of anticipatory bail is
not violative of Article 21 of the Indian Constitution since the right to have an
anticipatory bail is not a fundamental right but a statutory right.
But in S.S. Mhetre and Sibbia case (supra) it was also observed that if the
legislature itself were to impose an unreasonable restriction on the grant of
anticipatory bail, such a restriction could have been struck down as being
violative of Article 21. Therefore, while determining the scope of Section 438,
the court should not impose any unfair or unreasonable limitation on the
individual’s right to obtain an order of anticipatory bail. Imposition of an unfair
http://legallycorrect.blogspot.in/2013/01/ashis-nandy-atrocity-and-anticipatory.html, 6 October, 2013, 6.56
or unreasonable limitation, according to the learned Counsel, would be violative
of Article 21, irrespective of whether it is imposed by legislation or by judicial
It would not stand the test of fairness and reasonableness which is implicit
in Article 21 of the Constitution after the decision in Maneka Gandhi’s case 19 in
which the court observed that in order to meet the challenge of Article 21 of the
Constitution the procedure established by law for depriving a person of his
liberty must be fair, just and reasonable.20
Maneka Gandhi v. Union of India, 1978
2010/, 6 October, 2013, 6.37 PM