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Supreme Court on anticipatory bail

Supreme Court on anticipatory bail

  • The Supreme Court has ruled that Courts in “extraordinary circumstances” have the discretion to grant protection from arrest to accused even while denying them anticipatory bail.
  • The power cannot be exercised in an untrammelled manner, and the order will have to be a reasoned one.

Supreme Court's decision:

  1. HCs and SC are given powers to grant anticipatory bail to the accused because of the premium that the Constitution places on the right to liberty guaranteed under Article 21.
  2. The grant or rejection of an application under CrPC has a direct bearing on the right to life and liberty of an individual.
  • Therefore, the provision needs to be read liberally and considering its beneficial nature.
  • The courts must not read in restrictions that the legislature has not explicitly provided for.
  1. In doing so, the court may also exercise its powers under Article 142 of the Constitution to pass such an order.

The concept of anticipatory bail:

  • The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
  • As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before an arrest is made.
  • Time limit: The Supreme Court (SC) in Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial.
  • It is issued only by the Sessions Court and High Court.


  • The reason for the enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.
  • Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.