V.

CONCLUSION
Anticipatory bail is one of the most hotly debated topics in Indias criminal justice
system. The numerous Supreme Court cases and Government reports on this topic underscore
the importance of this unusual procedural device. Indeed, there is no shortage of attempts to
reform both the rules governing anticipatory bail and their implementation. Yet this
controversial area of criminal procedure is not to be found outside of South Asia. This raises
intriguing and important questions about why anticipatory bail came into existence, whether
it is the best way to achieve its purposes, and what it tells us about Indias criminal justice
system. Our analysis in this chapter suggests anticipatory bail arose to meet a combination of
institutional problems such as broad discretionary arrest powers, weak standards of judicial
and legislative review of the arrest power, political control of the police, and tort remedies
that are both weak and slow. Indeed, the ways in which anticipatory bail has been adapted
and interpreted suggests that these considerations were paramount for lawmakers and courts
alike. However, the judicial and legislative standards for reviewing arrests in India are
gradually becoming more aligned with more exacting standards seen in England and the U.S.
This suggests there may be something to be gained from re-examining whether anticipatory
bail may be useful in this changing context. We suggest that it still is likely to retain a
valuable supplementary role in the Indian institutional context.
We began by examining the historical development of anticipatory bail and arrest
powers in India. The Indian Police Act 1861, enacted primarily to strengthen British control
over the Subcontinent, granted broad powers to the police to arrest individuals (with weak
judicial oversight) while subjecting the police to political control. This in turn generated
debate about the prospects for abuse. After Independence in 1947, the Government of India
did little to change the institutional characteristics of the police. As the political structure
within India became more competitive, concerns mounted that the broad arrest powers and
greater political interference with the police would lead to misuse of arrest powers by
politically influential individuals wishing to target their rivals or by the police and private
parties seeking to extort money or legal settlements from others. These concerns led to the
creation of Section 438 of the CCP in 1973, providing courts with the power to grant bail in
anticipation of a persons arrest. This prevented the person from being detained by the police,
even for a short period of time, while allowing a criminal investigation to continue.

Although Section 438 was intended to be used sparingly, the courts have over time
opted for a broader and more generous approach to anticipatory bail. This is in part due to
increasing concern about the misuse of arrest powers and because there was little
implementation of stronger arrest standards.
The breadth of these protections has generated considerable controversy and raises
questions about whether the problems that led to the AB system should lead to more
sweeping reforms of arrest powers. Reliance on anticipatory bail to address the concerns
noted above stands in stark contrast to the approaches utilized in other Anglo-American
jurisdictions where reliance on stronger judicial and legislative oversight standards (both preand post-arrest) is the norm. A variety of reform proposals have captured the attention of
Indias legal and political elites, but so long as the police themselves remain corrupt,
politicized, and unreliable, some of these may be viewed as promising supplements to the AB
system but not as substitutes.
However, we are quick to note that many of the concerns noted in this paper are not
simply driven by arrest powers but by the institutional context in which police enjoy broad
discretion in exercising their powers, against the further background of a slow adjudicatory
system that is itself subject to significant political distortion, corruption and misuse. These
inter-related problems need to be addressed for Indias criminal justice system to function
better. Reforms to anticipatory bail are a small palliative and should not be mistaken for a
cure to the larger ills of the criminal justice system.
Bail is a fundamental issue in administration of criminal justice system. An accused is said to
be admitted to bail when he is released from the custody of police or court. In turn, the
sureties accept the responsibilities to pro-duce the accused to answer, at a specified time and
place, the charge against him. Although bail ensures avoid-ance of unnecessary sufferings of
presumably innocent person, it may conversely hamper administration of jus-tice by enabling
the accused person to abscond or to threaten the victims and witnesses. Granting or rejection
of bail may also result into economic and social difficulty for the families of victim and
witnesses.
Therefore, it must be emphasize here that reforms in the bail related steps towards ensuring
early identifica-tion and speedy trial of an exemplary punishment for instituting false and

frivolous cases should accompany criminal systems. A massive awareness programme against
false cases should also be undertaken for reducing and preventing institution of such cases.
Otherwise use of bail process against the weaker sections of society might flourish and that
would jeopardise the objectives of aforesaid reforms to practice of bail.

The criminal justice system of India needs to be re invented.

Higher standards of professionalism are required to be upheld by the criminal investigation
system and it should be provided apposite logistic as well as technological support. Grave
offences should be classified for the purpose of specialized investigation and only specially
selected, trained and experienced investigators should investigate such offences. Also such
investigators should not be burdened with other duties like maintenance of security and law
and order etc.
The other reform needed is enhancement of Forensic Science Institutions with advanced
technologies like DNA fingerprinting technology. The process of decriminalization should
also include the system of plea-bargaining; as was recommended by the Law Commission of
India in its Report as well.
The confidence of people is the greatest asset that the police enjoy in investigation of crimes
and maintenance of law and order. In the present day scenario, this confidence is at its nadir
where the police are increasingly losing public confidence. If Police itself is seen as the
transgressor of law and abuser of the power, the public develops repugnance towards the
same making the duties of the police officials even more difficult affecting the investigation
system adversely thereby having the same effect on the Criminal Justice System.
To restore public confidence in the police administration, there should be a periodical review
of all the arrests made in the districts by the police officials of the district making a note of
the number of cases in which the arrests made actually culminated in the filing of Chargesheets and also of those cases where the arrests that were made turned out to be unnecessary
in the end. This review will act as a watch dog over the tendency of unnecessary arrests.
Participation of the civilians should be encouraged by the Legal Services Authority by setting
up committees which would bring the accused and the victim in reconciliation to work out
compounding of the offences.