Personal Liberty and Grant of Anticipatory Bail

Suresh C. Gupta

Article 21 of the Constitution guarantees to a person security of life and personal liberty, and according to the same, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. This article has been considered to be the soul and heart of the Constitution, since all other fundamental and legal rights available to an individual become meaningless if he is deprived of his right to life and personal liberty. In Maneka Gandhi’s case, (1978) 1 SCC 248, the Supreme Court has held that in order to meet the challenges of Article 21 of the Constitution, the procedure established by law must be fair just and reasonable.

Section 438 of the Code of Criminal Procedure provides for grant of anticipatory bail to a person who apprehends, arrest at the hands of the police. The above provision in this regard, to grant of anticipatory bail, was introduced in the Cr.PC, on the recommendation of the Law Commission of India in its 41st report dated 20.04.1969.

Sub-section 1 of Section 438 of Cr.PC., as it originally stood, read as under:-

“(1) 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 events of such arrest, he shall be released on bail.”

The above provision, was however, amended in 2005 and the amended Sub-Section-1 of Section 438 of Cr.P.C. reads as under:-

(1) Where any person has reason to believe that he may be arrested on 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.

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section 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.

Scope, power and jurisdiction to grant anticipatory bail by the High Court or the Court of Sessions was initially considered by a Constitution Bench of the Supreme Court in the celebrated case of “GURBAKSH SINGH SIBBYA VERSUS STATE OF PUNJAB, (1980) 2 SCC 565.

In the above case of Gurbaksh Singh the Supreme Court inter-alia held and observed as follows:

“We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restriction on the scope of section 438, especially when no such restriction have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, 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. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a constitutional challenge by reading words in it which are not to be found therein.”

More recently in the case of JOGINDER KUMAR VERSUS STATE OF U.P.&ORS., (1994) 4 SCC 260, Supreme Court, showing utmost concern in this regard, i.e. grant of anticipatory bail, inter-alia quoted the contents of 3rd Report of the Police Commission which read as:

“———An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:-

i) the case involved a grave offence like murdered, dacoity, robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victim.

ii) the accused is likely to abscond and evade the processed of law.

iii) the accused is given to violent behavior and is likely to commit similar offences again.

iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instruction that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines——–“

After considering the above Supreme Court further held and observed as under:

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of is it quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person complicity and even so as to the need to effect arrest. Denying a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offence, an arrest must be avoidable if a police officer issue notice to person to attend the station house and not to leave station without permission would do.

Recently, two co-ordinate benches of the Supreme Court passed judgements, one on 15.12.2009, in the case of RavindraSaxena Vs. State Of Rajasthan, (2010) 1 SCC 684, and another in the case of HDFC BANK LTD. VS. J.J.MANNAN, dated 16.12.2009, reported as (2010) 1 SCC 679, giving contrary views on certain important aspects relating to power and scope of granting anticipatory bail u/s. 438 Cr.P.C.

In the case of RavindraSaxena, Hon’ble Supreme Court, relying upon the observations made in Gurbaksh Singh’s case and Maneka Gandhi’s case held and observed that an application for anticipatory bail cannot be permitted to be jettisoned on technicalities, such as challan have been filed and also that the only because the allegations in the case concerned cheating and forgery of valuable securities, that should not be a reason to deny anticipatory bail to the accused.

However, in the case of HDFC Bank Ltd., Supreme Court held that Section 438 Cr.PC. contemplates arrest at the stage of investigation and provides mechanism for an accused to be released on bail if he apprehends arrest during the period of investigation. Once the investigation made out a case against case him and he is included as an accused in the charge sheet, the accused had to surrender to the custody of the Court and pray for regular bail.

Now, in the latest judgment, pronounced in the case of Siddha Ram SatilingppaMehtre vs. State of Maharastra&Ors. (2011) 1 SCC 694, the Supreme Court once again considered in detail the scope and power of the Courts to grant anticipatory bail u/s. 438 of Cr.PC., especially the question as to whether anticipatory bail can be granted only for a limited period i.e. till the filing of the challan.

After thoroughly scrutinizing the law relating to grant of anticipatory bail, and also considering the various reports and the earlier case laws, including the legal position as existing in India and other countries, the Supreme Court in Para 95 of the judgment held and observed that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Gurbaksh Singh’s case. In Para 99 of the judgment the Hon’ble Court observed that the restriction of the presumption of the anticipatory bail us. 438 of Cr.PC. limit the personel liberty of the accused 191 or 91 of the constitution. Further observed that the observation hidden in the earlier case of “Sallauddin Abdul SamadSeikh , (1996) 1 SCC 667, (relied upon by the Hon’ble Division Bench in HDFC Bank’s case) was in conflict with and contrary to the legislative intention and the spirit of the very provisions of the anticipatory bail itself and the same are artificial and unreasonable restrictions nowhere found in the enactment. The Supreme Court also observed that such restriction does not stand the test of the fairness and reasonableness which is implicit in Art. 21 of the Constitution, after the decision in Maneka Gandhi’s case. It may be mentioned here that in the above said case of Sallauddin it was observed that the anticipatory bail had to be given only for the limited period so as to enable the accused to move for regular bail us.437 Cr.PC.

In the above judgment of Siddha Ram Satilingappa, Supreme Court has finally held and observed that Section 438 Cr.PC does not mention any thing about any duration to which direction on release of bail in the event of his arrest can be granted. The order granting anticipatory bail is a direction, specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be justified in imposing conditions on him, including direction to join investigation. Once the accused is released on bail by the trial court, then it could be unreasonable to compel the accused to surrender before trial court and again apply for anticipatory bail. (Para 100 & 102).


1. An individual’s personal liberty can be curtailed only in accordance with the procedure established by law.

2. The procedure so established by law must be fair, just and reasonable.

3. No arrest of a person should be made without a reasonable belief/satisfaction by the Police Officer that such arrest in necessary and justified, (Joginder Kumar’s case).

4. Section 438 Cr.P.C. provides for granting anticipatory bail by the High Court or the Court of Sessions, to a person accused of a non-bailable offence or he is otherwise apprehending arrest.

5. A person/ accused can be granted anticipatory bail even after challan/charge-sheet has been filed by the prosecution against him. (RavindraSaxena’s case).

6. Contra view taken in H.D.F.C. Bank’s case- Once the person is accused in the charge sheet, he has to surrender to the custody of the court and pray for regular bail.

7. As per ratio in Siddha Ram Satilingppa’s case- if anticipatory bail is once granted it cannot be said to be for a limited duration and the accused should not be directed to surrender and apply for a regular bail.