12 - Chapter 6 PDF
12 - Chapter 6 PDF
12 - Chapter 6 PDF
ANTICIPATORY BAIL
CHAPTER - SIX
Anticipatory Bail
The use of bail mechanism has been extended further by taking into
its fold a comparatively new concept. In common parlance it is known as
anticipatory bail.2 This provision deals with a situation where a person
having reasonable apprehension that he would be arrested on an acusation
of having committed a non-bailable offence, such a person can move an
application in an appropriate court seeking the grant of anticipatory bail.
When the court grants anticipatory bail, what it does is to make an order
that in ,the event of arrest, a person shall be released on bail.
The words anticipatory bail' are neither found in S. 438 nor in its
marginal note. In fact, 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 that in the event of arrest
a person shall be released on bail. Manifestly there is no question of release
on basil unless a person is arrested and, therefore, it is only upon arrest thatv
an order granting 'anticipatory bail' becomes operational.3 The expression
of anticipatory bail is a convenient mode of conveying that it is possible to
apply for bail in anticipation of arrest.
1 Vide Law Commission’s 41st Report, Vol. 1, pp. 320, 321, para 39.9.
2 Kelkari's Code of Criminal Procedure, p. 202.
3 Balchand Jain vs. State of M.P., 1976 4 SCC 572.
Direction for Grant of Bail to Person Apprehending Arrest
U/s 438 Cr.P.C.
438. *[(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:—
(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 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.
(1-A,) Where the Court grants an interim order under sub-section (I,),
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.
(1-B) The presence of the applicant seeking anticipatory hail shall be
obligatory at the time of final hearing of the application and passing of final
order by the Court, f on an application made to it by the Public Prosecutor,
. the Court considers such presence necessary in the interest ofjustice.]
(2) 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 think fit, including—
(i) A condition that the person shall make himself available for
interrogation by a police officer as and when required;
(ii) 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;
(iii) A condition that the person shall not leave India without the previous
permission of the Court;
(iv) Such other condition as may be imposed under sub- section (3) of
section 437, as if the bail were granted under that section.
“39.9. The suggestion for directing the release of a person on bail prior
to his arrest (commonly known as anticipatory bail) was carefully
considered by us. Though there is conflict of judicial opinion about the
power of a Court to grant anticipatory bail, the majority view is that there is
no such power under the existing provisions of the Code.
The first part of the section sets out the conditions under which a person
can make an application for anticipatory bail. The second part confers
jurisdiction on the High Court or the Court of Session. Thus the second part
can be viewed as strictly jurisdictional; the High Court and the Court of
See Varkey Paily Madthikudiyil, AIR 1967 Ker 189; Narayen Prasad) AIR 1963
MP 276.
Session have concurrent jurisdiction. Once a Court is invested with
jurisdiction, that jurisdiction subsists all along unless taken away expressly
or by implication. There are no express words in the section itself,
indicating that the jurisdiction is taken away under any circumstances. It
does not appear that by implication even the jurisdiction of either of the
Courts is taken away or put an end to. It seems that the Legislators did not
intend to exclude the one or the other of the two Courts-the High Court or
the Court of Session. Had it been so intended, the legislators would have
taken care to express that clearly, as they have done in subsection (3) of
Section 397 or sub-section (3) of Section 399 Anticipatory bail cannot be
claimed as a matter of right, it is essentially a statutory right conferred long
after the coming into force of the Constitution- It is not an essential
ingredient of Art. 21 of the Constitution.5
(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. This
amendment in the section will come into force from the date
of its notification.
When the accused is admittedly involved in the offence and when police
want the accused for investigation application may be rejected.10
matter of rule, should be granted only when a special case is made out and
the Court is convinced that the person is of such a status that he would not
misuse his liberty. The power of anticipatory bail being of extraordinary
nature should be exercised only in exceptional cases. If a case for
anticipatory bail is made out, it should not be refused merely because the
accused is required in police custody for interrogation.14 The wide powers
conferred to the higher Courts under Section 438(1) cannot be invoked on
the basis of general allegations. The judicial discretion conferred must be
properly exercised after proper application of mind to decide whether it is a
fit case for granting anticipatory bail or not.15
Somabhai v. Stale of Gidanat, 1977 Cr. LJ 1523 (Guj); Natlunasu v. State, 1998
Cr. LJ 1762 (Mad).
Lilanani L. Rsvani v. R.D. Gandhi, 1998 Cr. LJ 14(15) (Guj).
Ba/chandJain v. State ofM.P., AIR 1977 SC 366 (1977) 2 SCR 52:1977 Cr. LJ
225; Thaniel Victon v. State, 1991 (I) Crimes 354,359 (Mad).
Mathanthagouda v. State of Kannataka, 1978 Cr. LJ 1045 (Kant).
Rama Swanoop v. State (Delhi Adrnn), 1986 Cr. LJ 526.
V. Not controlled by S. 437.— The section is not controlled by the
limitations imposed under S. 437(1). The power to grant anticipatory bail is
not circumscribed by limitations imposed by S. 437(1). Ss. 437 and 438
have independent fields, S. 438 is not of universal application and has
restricted field, if it does not give any discretion to the Court to enlarge a
person on anticipatory bail, if which is available under S. 437
A person already on bail anticipatory bail cannot apply afresh for bail
anticipatory bail in respect of the same accusation.25 “He” in the expression
“he may apply to Court” occurring in S. 438 does not include a stranger or
a tadhirkan or a tout or a middleman.26 Hence a ladhinkar or an agent
IX. Operation of the order.— The operation of the order passed under
sub-section (1) should not be limited in point of time.28 Anticipatory bail
once granted must be held to be operative till the conclusion of the trial,
State of Andhna Pnadesh v. Btrnal Knishna Kundu, AIR 1997 SC 3589 : AIR
1997 SCW 3700 :1997 Cr. LJ 4056 (4058): 1997 SCC (Cri) 1245.
Sunesh Vasudeva v. State, 1978 Cr. LJ 677 (Del).
Gunbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : (1980) 2 SCC
565 :1980 Cr. LJ 1125; Nattunasu v. State, 1998 Cr. LJ 1762 (Mad).
Bharat Chaudhany v. State ofBihan, (2003) 8 SCC 77 2003 SCC (Cri) 1953 :
2003 Cr. LJ 5038 (5039) (SC).
Akhalaq Ahmed F. PateI v. State of Maharashtra, 1998 Cr. LJ 3969 (13om);
Sheikh Khasin Bi v. State, AIR 1986 AP 345 :1986 Cr. LJ 1303 (FB); Ninbhay
Singh v. State ofMP., 1996 (1) Crimes 238:1995 Cr. LJ 33. 17 (MP-FB); Puran
Singh v. A lit Singh, 1985 Cr. LJ 897 (P&H-DB); Pankaj Lochan Sahoo v. State,
1996 (2) Crimes JJJ (Cal); P. V. Nansimha Rao v. State, 1997 Cr. LJ 961 (Del-
DB); A nun Kitman v. State of MP., 2000 Cr. LJ 1644 (MP); Nattunasu v.State of
Madnas, 1998 Cr. LJ 1762 (Mad); Sennasi v. State, 1997 (3) Crimes 112 (Mad);
A, Ebenezen v. State of Kannataka, (2003) 2 Crimes 44 (2003) 6 Kant U 171 :
2003 Cr. LJ 265 (268) (Kant) (Dissenting from 1986 Cr. LJ 1303 (FR); Shamim
Ahmedv. State, (2003)2 Cl-IN 431 (2003)2 HCR 589 : 2003 Cr. LJ 2815 (FR)
(Cal).
view has been taken.
XVIII. Anticipatory bail—who may be granted.—The anticipatory
bail under S. 438, may be granted to the following persons—
For other category of cases, the general law of bail is already provided in
S. 439.
(a) The provisions of this Section are an exception to the general rule
and this power should be exercised in exceptional cases.
38 Ashok Kumar v. State of Orissa, 2000 Cr. LJ 1975 (On); Kundal Majumdar v.
State of Tnipura, 2002 Cr. LJ 353 (Gau); Ambalal P. Reshamwala v. State of
Mahanashtna, 1992 Cr. LJ 2373 (Bom); Panka] v. State of Rajasthan, 1996 Cr.
LJ 3265 (Raj); Kundal Majumdan v. State of Tnipuna, (2002) 1 Gau LR 282 :
2002 Cr. LJ 353 (355) (Gauh).
39
Nanayansingh v. State ofMP., 1996 Cr. LJ 551 (MP).
is convicted and his appeal is pending before High Court.
(c) In an application under this section the applicant must show that he
has reasons to believe that he may be arrested for a non-bailable
offence and grounds for such belief must be capable of being
examined by the Court objectively and this section cannot be
invoked on the basis of vague and general allegations, as
anticipatory bail is a device to secure the individual’s liberty; it is
neither a passport to the commission of crimes nor a shield against
any and all kinds of accusations, likely or unlikely.
(1) An order under this section can be passed without notice to the
Public Prosecutor. But such notice should be issued forthwith and
the question of bail should be re-examined thereafter in the light of
respective contentions of the parties.
(i) Some very compelling circumstances must be made out for granting
bail to a person accused of committing murder and that too when
the investigation is in progress.
(2) The position and the status of the accused with reference to the
victim and the witnesses;
(5) of jeopardising his own life being faced with a grim prospect of
possible conviction in the case;
(8) Other relevant grounds which may apply to the facts and
circumstances of a particular case.41
Adni Dharan Das v. State of West Bengal, 2005 Cr. LJ 1706 (SC); Sanzbhu Das
v. State of Tnipuna, 1988(1) Crimes 634 (Gau); see also Ninbhay Singh v.
State ofAL P„ (1996) 1 Crimes 238:1995 Cr. LJ 3317 (MP-FB).
Sajan Kitinan v. Stale, 1991 Cr. LJ 645, 633 (Del); M Knishnappa v. State of
Karnataka, 1992 Cr. LJ 2648 (Kant); Abdul Rashik Shaik v. State of Gujanat,
2001 (2) Guj LR 1580 (1586) (Guj) (Various aspects to be considered while
Anticipatory bail is not to be granted lightly, indiscriminately and in
any event, that it should never be granted in situations where it would
seriously affect an investigation,42 While deciding the question of
anticipatory bail, the Court would not be guided by the cover of the
allegations but would look into the nature of the allegations and would
decide whether a prima facie case with which the accused has been charged
is made out or not.43
discretionary and governed by the restrictions and limitations under Ss. 437
& 439 (J&K Criminal Procedure Code).48
Gunbaksh Singh Sibia v. Stale ofPuniab, AIR 1978 P&H 1 :1978 Cr. LJ 20
(P&H).
Ramsewak v. State oJMP., 1979 Cr. LJ 1485, 1494 (MP-DB).
Kali Dass v. 5.110, Police Station, Reasi, 1979 Cr. LJ 345 (J&K),
Gunbaksh Singh Sibia v. State ofPuniab, AIR 1978 P&H 1 :1978 Cr. LJ 20.
Gunbaksh Singh Sibbia v. State of Puniab, AIR 1980 SC 1632 :(1980) 2 SCC
565:1980 Cr. LJ 1125; State ofAssani v. (Dn.) Bnojen Gogoi, AIR 1998 SC
143:1999 SCC (Cri) 403.
Chandnakant Chandulal Bhansali v. Snikanl Shniknishna Joshi, 1993 (2) Crimes
389 (Bom).
55
Union of India v. YusufRazak Dhanani, (2003) 8 SCC 908 : 2003 SCC (Cri) 1963
: 2003 Cr. LJ 4560 (4561) (SC).
XXVI. Speaking order.—The Court is expected to pass a speaking
order furnishing salient features of the case, and the factors which weighed
with the Court while passing an order on a petition for anticipatory bail.56
Where the Magistrate sends the complaint filed under Ss. 467, 468, 471
474, 420/120, 1PC to police and directs the police to start regular case, it
would be sufficient for the petitioner to entertain reasonable belief that he
may be arrested in conviction with a non-bailable offence, application for
anticipatory bail would be maintainable. (In Re. Sanjay Kumar Singhania,
2003 Cr. LJ 4789 (4789) (Cal).
Court is convinced that the applicant is such a person who would not
abscond or otherwise misuse his liberty 68 The jurisdiction under S. 438 is
not to be freely exercised without reference to the nature and granting of
the offence alleged, the possible sentence that may be Ultimately imposed,
the possibility of interference with the investigation or the witnesses and
the public interest.69
R.L. Jalappa v. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant).
Gaffansah v. State of Kannataka, 1991 Cr. LJ 2136, 2138 (Kant).
A mm Kiiman v. State, 1990 Cr. LJ 1988 (On).
Sadya v. State ofRajasthan, 1988 (3) Crimes 472 (Raj).
Munna Muni Khan v. State of Rajasthan, 1996 Cr. LJ 831 (Raj).
State of Kenala v. KR. Sttna, 2004 Cr. LJ 1995 (2000) (Ken).
XXXVII. Offence under S. 302 Indian Penal Code.— In the case of
an offence punishable under Section 302 I.P.C., it is proper to consider the
application under this section for anticipatory hail unless aprima facie case
has been made out. The High Court has power to entertain the application
in appropriate Cases particularly when prima facie case has not been made
out.-8 Very compelling circumstances must be made out for granting bail to
a person accused of committing murder and that too when the investigation
is in progress. There cannot be any dispute regarding the proposition of
law that the Court has got power to grant anticipatory bail even in murder
cases. But, the power of granting of anticipatory bail is discretionary and
the discretion vested in the Court is to be exercised judiciously and not
arbitrarily or capriciously. When a Judge grants bail or anticipatory bail in
any case, much more so in ;cases of murder, he is required to give cogent,
RO
judicious and proper reasons in support of his Order.
406, 468, 467,471 and 120B I.P.C., was enlarged on bail subject to deposit
of Rs. 10 crores, it was not a proper exercise of discretion, hence the order
as to deposit of Rs. 10 crores was set aside.93 Where a person applies for
bail in a case accused of embezzlement, that the accused should deposit the
embezzled amount or should furnish bank guarantee therefore, is not
relevant and not unsustainable.94
92 VSatyanarayana v. State ofA.P., 2000 Cr. LJ 605 (AP); Shaik Layak v. State,
1981 Cr. LJ 14 (AP); Darshan Singh v. State of Rajasthan, 1993 Cr. LJ 1973
(Raj).
93 Avinash Arorav. State of U.T. Chandigar, AIR 2000 SC 3563 (1): AIR 2000
SCW 3563 : 2000 Cr. LJ 4674 (SC).
94 Darshan Singh v. State of Rajasthan, 1993 Cr. LJ 1973 (Raj); Banwari Lai v.
State of Rajasthan, 1979 Raj Cri C 158 (Raj).
95 Indu Bala v. Delhi Administration, 1991 Cr. LJ 1774 (Del).
96 P.S. Saravanabhavanandam v. 5. Miirugaiyyan, 1986 Cr. LJ 1540 (Mad).
97 Dianusidari Prasad v. State of Bihar, 1990 (3) Crimes 524 (Pat).
98 Anant Vasant Joshi v. State of Maharashtra, 1986 (1) Crimes 170 (Born).
99 Sanjeev Chandel v. State ofH.P., (2003) 2 Rec Cri R 450 : 2003 Cr. LJ 935 (936)
An interim anticipatory bail for a limited period may be granted by the
Court even without issuing notice to the Public Prosecutor pending
consideration of the petition on merits.100 An interim anticipatory bail may
be granted even for a limited period for want ofjurisdiction.88
accused persons.
Where the application for anticipatory bail is pending before the High
Court, and the Court has granted interim anticipatory bail, the accused can
file bail for regular bail before the Sessions Curt only with the permission
of the High Court.90
(HP); Anil Kapoor v. State of Himachal Pradesh, (2002) 1 Chand LR (Civ & Cri)
269 (HP).
100
N. Snrya Rao v. State of Maharashtra, 2001 (2) Andh LT (Cri) 341 (343): 2002
Cr. LJ NOC 170 (AP); Bad and v. State of A1P., AIR 177 SC 366; Gurkaksh
Singh v. State of Punjab, AIR 1980 SC 1632.
commit the accused to custody under S. 209101
and order is made granting anticipatory bail, it is implicit that the Court
making such an order is entitled upon appropriate consideration to cancel or
recall the same, It is not necessary for such purposes to find out any further
specific provision conferring power of cancellation.105 The cancellation of
anticipatory bail already granted can be ordered only when the accused has
interfered with the course of justice by tampering with the evidence or has
misused or abused his privilege.106 Very cogent and overwhelming
circumstances are necessary for an order seeking cancellation of bail.107
Where accused facing prosecution under Ss. 406 and 498A, IPC have been
released on bail, bail would not be cancelled merely because articles of
stridhan have not yet been returned.108 A reasoned and well considered
order granting anticipatory bail would not be cancelled by the High Court
by mere observation that bail has been obtained by dubious means.109
Where the High Court had refused anticipatory bail and the Supreme
Court had refused to interfere with the order of refusal passed by the High
Court, anticipatory bail subsequently granted by the Sessions Judge was
N. Suiya Rao v. State of Malaras/itra, 2001 (2) Andh LT (Cri) 341 (344): 2002
Cr. LJNOC 170 (AP).
Sukoor v. MS Kanti, (2002) 5 Kant U 194 : 2002 Cr. LJ NOC 246 (Kant-DB).
Sukoor v. MS Kanti, (2002) 5 Kant U 194 : 2002 Cri J NOC 246 (Del).
Jairam Tiwari v. Stale ofBihar, 1987 Cr. LJ 254 (Pat).
Stale of Maharashtra v. Vishwas, 1978 Cr. LJ 1403, 1405 (Bom-DB).
Vishwanath Tiwari v. State of Bihar, 1988 Cr. LJ 333 (Pat).
Rajan Mahajan v. State, 2002 Cr. LJ 2433 (2434) (Del); Bhagirath Singh v. State
of Gujarat, AIR 1984 SC 372:1984 Supp SCC 372:1984 Cr. LJ 160.
Rajan Mahajan v. State, 2002 Cr. LJ 2433 (2434) (Del).
Mahant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18 : (2003) 1 SCC
326 : 2003 Cr. LJ 76 (81, 82) (SC).
cancelled.110
(1) An order granting anticipatory bail under Section 438 or bail under
Section 439(1) is amenable to appellate provisional scrutiny and may be
cancelled if it was made in arbitrary or improper (and not judicial) exercise
of the discretionary power or was made without application of mind or
without consideration of all relevant circumstances or was based upon
irrelevant considerations or was vitiated by any basic error of law or was
otherwise perverse.
Dharampal v. State of Punjab, (2002) 1 P&H 477 : 2002 Cr. LJ 1621 (1623)
(P&H).
Bolai Mistry v. State, 1977 Cr. LJ 492 (Cal-DB).
Mahant Chand Nath Yogi v. Stale of Haryana, AIR 2003 SC 18 : (2003) 1 SCC
326 : 2003 Cr. LJ 76 (82) (SC); Subi endu Mishra v. Subrat Kumar Misra, AIR
1999 SC 3026 :1999 Cr. LJ 4063; Dolat Ram v. State of Haryana, (1995) 1 SCC
349; JT 1995 (1) SC 127.
AK. Murmu v. Prasenjit Choudwy, 1999 Cr. LJ 3460 (3468) (Cal-DB).
appropriate cases, however few those cases might be,
Where an accused was enlarged on bail in the event of his arrest for
offences alleged under Sections 279, 337 and 304A, I.P.C., but about 33
days later the offences were altered to Sections 302 and 307 I.P.C.,114 for
about a year since grant of bail accused has not violated any of the
conditions of bail and police have not filed charge-sheet even after lapse of
a year and two months and in the absence of cogent and overwhelming
circumstances cancellation of anticipatory bail is not justified.”
turning down the request of the police to grant reasonable time to recover
property without giving reasons, was cancelled.118 Merely because the
accused has not controverter the allegations made in' the petition for
cancellation of bail would not be a ground for cancellation of anticipatory
bail.119
Uttaranchal and v. State ofJ&K, 1989 (2) Crimes 626, 630 (J&K-DB).
Suresh Chandra Gin v. State of Orissa, 1988 (3) Crimes 428 (On).
Court on its own motion v. Sanjay, 1995 Cr. LJ 1824 (P&H).
Kitnibeh v. State of Gujarat, 1992 Cr. LJ 1994 (Guj).
Gabriel Joseph v. Feroz Gtdain Sarvar Khan, 1992 Cr. LJ 458 (Born).
Sanmnukha Swamy v. State of A.P., 2001 (2) Andh LT (Cri) 131 (132): 2002 Cr.
LJ NOC 277 (AP).
XLIX. Fresh conditions.— When prosecution moves the Court for
cancellation later, Court can impose fresh conditions, if warranted.120
A Full Bench of the Calcutta High Court has summarized the law as
under:—
(a) The only remedy available to the accused upon rejection of regular bail is
to apply to the superior Court for regular bail and not once again for
anticipatory bail.
(b) Accused who prefers an application for regular bail in compliance with the
conditions stipulated in the order of anticipatory bail and physically
submits to the jurisdiction and order of the Court, before which such
application is filed, the application is required to be disposed of on merits if
(c) If the application for regular bail is moved within the duration of
anticipatory bail, but the passing of the order is delayed for any reasons
whatsoever and it is likely to come after the expiry of the outer limit of the
duration fixed by the order of anticipatory bail, the Court hearing the
regular bail application can always grant interim regular bail for limited
duration till final orders are passed by the Court.
(d) If the application for regular bail is moved within the duration of
anticipatory bail and the same is rejected/refused but the outer limit
prescribed by the order of anticipatory bail has not expired, then instead of
taking the accused into custody he may be allowed to move the superior
Court for bail within the specified period namely the outer limit as
specified in the order of anticipatory bail.
(e) If the application for regular bail is moved after or the date as on which the
application for regular bail is rejected and in either case the outer limit
prescribed by the order of anticipatory bail has expired, then and irrthat
event on and from the date of expiry of the period fixed by the order of
anticipatory bail, the accused must surrender and be in the custody of the
Court before the superior Court can take up for consideration the
application for regular bail.125
The applicant has the right to choose forum and he can approach the
High Court direct for bail.126
The Sessions Court and the High Court have concurrent jurisdiction in
matters relating to grant of anticipatory bail.127 The section clearly
Maya Rani Gum v. State of West Bengal, (2002) 4 Cl-IN 480 : 2003 Cr. LJ 1 (1)
(Cal) (FB).
126
Bajan v. State of Kerala, 2004 Cr. LJ 3427 (3431) (Ker-DB).
127
Jagamath v. State of Maharashtra, 1981 Cr. LJ 1808 (Born); State of Tripura v.
Samuel Ruhul Askar, (2001) 2 GLR 546 (Gau),
contemplates two concurrent jurisdictions, namely of the High Court and
the Court of Session. It is left to the person to choose either of them. The
provision does not create any bar against moving the High Court without
first moving the Session Court.128 However, it has been held that unless
exceptional circumstances exist, the Court of Session should be approached
first.129
Onkar Nath v. State, 1976 Cr. LJ 1142 (All); Mohan La! v. Prem Chand, AIR
1980 HP 36 (FB).
Hajiai Sher v. State of Rajasthan, 1976 Cr, LJ 1658 (Raj); KC. lyya v. Karnataka,
1985 Cr. LJ 214 (Kant).
130
Capt. Satish Kumar Sharma v. Delhi Administration, 1991 Cr. LJ 950, 956 (Del-
DB).
until the conclusion of the trial unless cancelled by the appropriate Court.88
It was held that even though provisions of Chapter XXXIII of the Code did
not apply to Arunachal Pradesh, it could not be contended that a Person
could not get himself released on bail in the wake of his arrest. The
procedure in S. 438 had a clear nexus with personal liberty of an individual
which is protected by Article 21 of the Constitution. It was therefore
observed that the procedure set out in Section 438 of the Code was one of
the basic principles of the Code and therefore argument of its non
applicability could not be sustained. In Gurubaksh Singh v. Punjab the
Supreme Court observed that the Sessions Court or the High Court are free
to decide whether to grant or not to grant the anticipatory bail on
considerations similar to those mentioned in S. 437 or which were
generally considered relevant under S. 439. In order that the procedure
prescribed by S. 438 should be just and fair so as to be consistent with
Article 21 of the Constitution, the Courts had been left free to exercise their
discretion which, by their long training and experience they were ideally
suited to do. The Court gave useful directions as to how the power could be
used.
(2002) 4 Crimes 86: (2002) 97 DLT 906: 2002 Cri J NOC 240 (Del).
In Laxmikant Sarda v. State of Maharashtra132,
Where the allegations against the accused at the most made out
offences under Ss. 451 and 354, IPC, which are bailable, the accused was
granted anticipatory bail.
In. case registered under Ss. 307, 498A and 304B/34, where the
death summary showed that it was case of suicide, the petitioner married
sister-in-law of the deceased having two minor children was granted pre
arrest bail,
filed under Ss. 420, 120B, IPC and S. 13(l)(d)and S. 13(2)of Prevention of
Corruption Act pertained to conspiracy cheating and causing, wrongful
losses to the Punjab Technical University and also unauthorizedly running
various centers, case required further probe, anticipatory bail was rejected.