The Code of Criminal Procedure (CrPC) is the legislation that governs the administration of criminal proceedings in the country. It was enacted in 1973. Offences are classified into two based on their bailable nature, i.e., bailable offences and non-bailable offences. An offence in simple language is an act or an omission prohibited by law. The concept of bail is still controversial in our country because the public feels that the accused might flee after issuing a bail. There are three types of bail namely regular bail, interim bail, and anticipatory bail. This article briefly discusses the concept of anticipatory bail and important case laws decided in its regard in the Supreme Court.

Bailable offence

A bailable offence is an offence that is not on its own very serious in nature. The bail may be granted to the accused only if he satisfies the essentials of procuring bail.

Examples of bailable offences: Selling noxious foods or drinks, rioting with a weapon, fabrication of false evidence, etc.


The term bail is not defined anywhere in the Code of Criminal Procedure. In general, bail is defined as a process of releasing an accused for a sum and it is also a promise that he will be attending the Court proceedings in the future. Bail is argued to be a right of the individual that is granted by the Constitution under Article 21.

If a person has committed an offence that is bailable in nature, he can demand bail. He needs to sign a “bail bond” which contains the terms and conditions on which a person will be released on bail. Any person who is on bail should stay within the Court’s territorial jurisdiction.

Aasu v. the State of Rajasthan (2017)

Facts of this caseAll 4 accused in this case are booked under Section 302 and Section 34 of the Indian Penal Code. The lower court granted anticipatory bail for all the other co-accused. The petitioner in the instant case also filed an application for anticipatory bail which was not decided for a long time. He challenged the same in the High Court.
Issue: Whether there is a prescribed time limit that a court shall dispose off bail applications?
Judgement: The Court has delivered a judgement that all the bail applications shall be disposed within a week of their filing.

Types of Bail

There are 3 types of bail available for a person. They are:

  1. Regular Bail
  2. Interim Bail
  3. Anticipatory Bail

Regular Bail

A person who is arrested and in police custody can apply for a regular/daily bail. Bail provisions are given under Section 437 and 439 of the Code of Criminal Procedure.

Sanjay Chandra v. CBI 2011

Facts of this case: The accused were charged with manipulation and misappropriation to influence UAS licences of the telecom industry. The Special Judge CBI, rejected the bail applications of the accused for which the accused appealed the validity of the said rejection of bail in the High Court of Delhi which was denied on 23.05.2011. The accused appealed to the Apex Court.
Issue: Whether the Court can reject an application of bail without proper reasoning?
Judgement: The Supreme Court delivered a judgement mentioning that the grant and rejection of bail application are at the sole discretion of the Court as the situations and circumstances should be carefully studied before grant or rejection of bail.

Interim Bail

Interim bail is awarded by a direct order of the Court to temporarily release an accused for a short term. The Courts noticed that interim bails are being misused in many cases and have decreased the number of interim bails issued.

Anticipatory Bail

Anticipatory bails are issued prior to the arrest of a person. It is also called a pre-arrest bail. It is mentioned under Section 438 of the Code of Criminal Procedure as ‘grant apprehending arrest’. The requirement of anticipatory bail has seen a rise in the early 1990s when there were a lot of false cases being filed on businessmen. To protect the interests of the public, the Law Commission has suggested adding a provision prohibiting arrest beforehand. As it is a matter of the personal liberty of a man, it was added to the Code.

According to Section 438 of CrPC, a person having committed an offence anticipates his arrest wherein he can approach the High Court or the Sessions Court for anticipatory bail. It is at the discretion of the Court whether to grant bail or reject the same. It solely depends on the circumstances and the seriousness of the offence. Anticipatory bail can be granted for a non-bailable offence and will be valid only if the person has no direct connection or when the Court believes that the person is innocent.

Cancellation of Bail

Uday Mohanlal Acharya v. the State of Maharashtra (2001)

Facts of this caseThe accused filed an application for bail after non-completion of investigation by the investigation agency.
Issue: Whether the Court can reject or cancel bail after the challan is issued?
Judgement: The Court cleared that the custody of the accused after the challan is not governed under Section 167 CrPC. The Apex Court has delivered its verdict stating that bail can be cancelled at any time even when he is at his committal proceedings.

Important cases on Anticipatory Bail

Grant of Anticipatory Bail

Gurbaksh Singh Sibbia v. the State of Punjab (1980)

The very first landmark judgement was given by the Apex Court is in the case of Gurbaksh Singh v. the State of Punjab.

Facts: The Minister of irrigation and power being Mr. Gurubaksh Singh and others from the government were facing serious allegations of corruption and misuse of power. They had  applied for anticipatory bail in the High Court, but it was rejected. They filed an SLP for the Supreme Court to consider the case.

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