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Bail: Definition

Bail is some form of property deposited or pledged to a court to

persuade it to release a suspect from jail, on the understanding that the
suspect will return for trial or forfeit the bail and possibly be brought up
on charges of the crime of failure to appear.
To procure the release of a person from legal custody,
by undertaking that he shall appear at the time and place designated and
submit himself to the jurisdiction and judgment of the court To set at
liberty a person arrested or imprisoned, on security being taken for his
appearance on a day and a place certain, which security is called bail,
because the party arrested or imprisoned is delivered into the hands of
those who bind themselves for his forthcoming, (that is, become bail for
his due appearance when required,) in order that he may be safely
protected from prison.1
Anticipatory Bail a word widely used in parlance of litigation but
which does not owe its origin to a statute. Neither section 438 of Cr.P.C
nor its marginal note so describes it but, the expression anticipatory
bail is a convenient mode of conveying that it is possible to apply for
bail in anticipation of arrest. In fact anticipatory bail is a misnomer. It
is not a bail presently granted by the Court in anticipation of arrest.
When the court grants anticipatory bail it means is that in event of arrest
the person shall be released on bail.
The conflict of judicial opinion whether a High Court had inherent
powers to make an order of bail in anticipation of arrest and the need to
curb the acts of, influential persons trying to implicate their rivals in
false cases for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days were the necessities, carved
out by Law Commission of India in its 41st Report to introduce
provision relating to Anticipatory bail. The Law Commission in its 48
Report in the year 1972 recommended acceptance of suggestion. The
object of Section 438 is to prevent undue harassment of the accused
persons by pre-trial arrest and detention
1 http://thelawdictionary.org/bail/" title="BAIL">BAIL</a>

As most things have a dark side so do this provision of the code. The
object behind enacting this law was to prevent the innocent from getting
trapped but with time the picture has changed and now persons accused
of heinous offences and even habitual offenders are invoking it
repeatedly, which was not the intent of the relief sought to be given by
this section.

The Code of Criminal Procedure, 1898 (old Code) did not contain
specific provision corresponding to Section 438 of the present Code of
1973. Under the old Code, there was a sharp difference of opinion
amongst various High Courts on the question whether a Court had
inherent power to make an order of bail in anticipation of arrest. The
preponderance of view, however, was that it did not have such power.2
The Law Commission of India, in its 41st Report dated September 24,
1969 pointed out the necessity of introducing a provision in the Code of
Criminal Procedure enabling the High Court and the Court of Sessions
to grant anticipatory bail. It observed in para 39.9 of its report
(Volume I) that:
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 a 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
necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting them
detained in jail for some days. In recent times, with the accentuation of
political rivalry, this tendency is showing signs of steady increase. Apart
from false cases, where there are reasonable grounds for holding that a
person accused of an offence is not likely to abscond, or otherwise
misuse his liberty while on bail, there seems no justification to require
2 Savitri Agarwal V State of Maharashtra (2009) 8 SCC 325

him first to submit to custody, remain in prison for some days and then
apply for bail. 3
In para 31 of its 48th Report (July, 1972) the Law Commission
recommended acceptance of the suggestion and made the following
comments on the aforesaid clause:
The Bill introduces a provision for the grant of anticipatory bail. This
is substantially in accordance with the recommendation made by the
previous Commission. We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such a power
should be exercised. We are further of the view that in order to ensure
that the provision is not put to abuse at the instance of unscrupulous
petitioners, the final order should be made only after notice to the Public
Prosecutor. The initial order should only be an interim one. Further, the
relevant section should make it clear that the direction can be issued
only for reasons to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice. It will also be
convenient to provide that notice of the interim order as well as of the
final orders will be given to the Superintendent of Police forthwith 4
The expression `anticipatory bail has not been defined in the Code and
is a misnomer inasmuch as, it is not as if bail presently granted in
anticipation of arrest.5 Where a competent court grants `anticipatory
bail, it makes an order that in the event of arrest, a person shall be
released on bail.6 The power of granting `anticipatory bail is
3 Law Commission of India 41st Report, September 1969, The Code of Criminal
Procedure, 1898 Volume I, para 39.9; pp. 320-321
4 Law Commission of India 48thReport,July 1972Some question under the Code
of Criminal Procedure Bill, 1970
5 Balchand Jain v. State of M.P., (1976) 4 SCC 572 at para 55
6 Gurbaksh Singh Sibbia v. State Of Punjab 1980 AIR 1632;1980 SCR (3) 383 at
para 397. When the even flow of life becomes turbid, the police can be called
upon to inquire into charges arising out of political antagonism. The powerful
processes of criminal law can the n be perverted for achieving extraneous
ends .Attendant upon such investigations, when the police are not free agents
within their sphere of duty, is a great amount of inconvenience, harassment and
humiliation. That can even take the form of the parading of respectable person in

extraordinary in character and only in exceptional cases where it appears

that a person is falsely implicated or a frivolous case is launched against
him or there are reasonable grounds for holding that a person accused
of an offence is not likely to abscond, or otherwise misuse his liberty
while on bail, such power is exercised. Therefore, the power being
`unusual in nature is entrusted only to the higher echelons of judicial
service, i.e. a Court of Session and a High Court.

Sections relevant to Bail under CRPC

Section 436: In what cases bail to be taken
1. When any person other than a person accused of a non-bailable
offence is arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought before a Court,
and is prepared at any time while in the custody of such officer or
at any stage of the proceeding before such Court to give bail, such
person shall be released on bail: Provided that such officer or
Court, if he or it thinks fit, may, instead of taking bail from such
person, discharge him on his executing a bond without sureties for
his appearance as hereinafter provided:- Provided further that
nothing in this section shall be deemed to affect the provisions of
sub-section (3) of Section 116 or Section 446A.
2. Notwithstanding anything contained in sub-section (1), where a
person has failed to comply with the conditions of the bail bond as
regards the time and place of attendance, the Court may refuse to
release him on bail, when on a subsequent occasion in the same
case he appears before the Court or is brought in custody and any
such refusal shall be without prejudice to the powers of the Court
to call upon any person bound by such bond to pay the penalty
thereof under Section 446.
handcuffs, apparently on way to a court of justice. The foul deed is done when an
adversary, is exposed to social ridicule and obloquy, no matter when and
whether a conviction is secured or is at all possible, It is in order to meet such
situations, though not limited to such contingencies, that the power to grant
anticipatory bail was introduced in into the code of 1973.

Section 437: When bail may be taken in case of non bailable offence
1. When any person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without warrant
by an officer-in-charge of a police station or appears or is brought
before a Court other than the High Court or Court of session, he
may be released on bail, buti.
such person shall not be so released if there appears reasonable
grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life;
such person shall not be so released if such offence is a
cognizable offence and he has been previously convicted of an
offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a nonbailable and cognizable offence: Provided that the Court may
direct that a person referred to in clause (1) of clause (ii) be
released on bail if such person is under the age of sixteen years
or is a woman or is sick or infirm: Provided further that the
Court may also direct that a person referred to in clause (ii) be
released on bail if it is satisfied that it is just and proper so to do
for any other special reason: Provided also that the mere fact
that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for
refusing to grant bail if he is otherwise entitled to be released
on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court.
2. If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are no
reasonable grounds for believing that the accused has committed a
non-bailable offence, but there are sufficient grounds for further
inquiry into his guilt, the accused shall, subject to the provisions
of Section 446A and pending such inquiry, be released on bail, or,
at the discretion of such officer or Court, on the execution by him
of a bond without sureties for his appearance as hereinafter

3. When a person accused or suspected of the commission of an

offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code (45 of 1860) or abatement
of, or conspiracy or attempt to commit, any such offence, is
released on bail under sub-section (1), the Court may impose any
condition which the Court considers necessary,i.
in order to ensure that such person shall attend in accordance
with the conditions of the bond executed under this Chapter,
in order to ensure that such person shall not commit an
offence similar to the offence of which he is accused or of
the commission of which he is suspected, or
iii. otherwise in the interests of Justice.
4. An officer or a Court releasing any person on bail under subsection (1) or sub-section (2), shall record in writing his or its
reasons or special reasons, for so doing.
5. Any Court which has released a person on bail under sub-section
(1) or sub-section (2), may, if it considers it necessary so to do,
direct that such person be arrested and commit him to custody.
6. If, in any case triable by a Magistrate, the trial of a person accused
of any non-bailable offence is not concluded within a period of
sixty days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate,
unless for reasons to be recorded in writing, the Magistrate
otherwise directs.
7. If, at any time, after the conclusion of the trial of a person accused
of a non-bailable offence and before judgement is delivered, the
Court is of opinion that there are reasonable grounds for believing
that the accused is not guilty of any such offence, it shall release
the accused, if he is in custody, on the execution by him of a bond
without sureties for his appearance to hear judgement delivered.

Section 438: Direction for grant of bail to person apprehending arrest

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 Sessions for a direction
under this section, and that Court may, if it thinks fit, direct that in
the event of such arrest, he shall be released on bail.
2. When the High Court or the Court of Sessions makes a direction
under sub-section (1), it may include such conditions in such
direction in the light of the facts of the particular case, as it may
think fit, including
A condition that the person shall make himself available for
interrogation by a police officer as and when required;
a condition that the person shall not, directly or indirectly, make
any inducement, threat or promiseto 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(2)
3. If such person is thereafter arrested without warrant by an officer
in charge of a police station on such accusation, and is prepared
either at the time of arrest or at any time while in the custody of
such officer to give bail, he shall be released on bail, and if a
Magistrate taking cognizance of such offence decides that a
warrant should be issued in the first instance against that person,
he shall issue a bailable warrant in confirmity with the direction of
the Court under sub-section (1).

Section 439: Special powers of High Court or Court of Sessions

regarding bail
1. A High Court or Court of Sessions may direct,
that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified
in sub-section (3) of Section 437, may impose any condition

which it considers necessary for the purposes mentioned in

that sub-section;
that any condition imposed by a Magistrate when releasing
any person on bail be set aside or modified: Provided that
the High Court or the Court of Sessions shall, before
granting bail to a person who is accused of an offence which
is triable exclusively by the Court of Sessions or which,
though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing,
of opinion that it is not practicable to give such notice.
2. A High Court or Court of Sessions may direct that any person who
has been released on bail under this chapter be arrested and
commit him to custody.

The High Court and a Court of Session, have concurrent jurisdiction to
grant anticipatory bail. There has been a judicial conflict as regards to
the Court competent to grant anticipatory bail, when the place of
commission of offence and the place of apprehension of arrest lie within
two different states but the dictum accepted by majority of the High
Courts is that that, a court of Session or the High Court having
jurisdiction over the local commission of offense can only grant
anticipatory bail.7The High Courts of Rajasthan, Madhya Pradesh,
Gujarat and Delhi have been firm on the legal position that a court
within whose jurisdiction a person apprehends arrest for a non-bailable
offence is competent court to grant anticipatory bail and a court has no
jurisdiction to grant anticipatory bail to the petitioner against whom a
case has been registered in another state.8The Kerala High Court has
also held that an arrest made outside the State will not be protected by
an order under Section 438 unless the offense itself is alleged to have
7Syed ZafrulHusan V State AIR 1984 Pat 194
8 Pradeep Kumar Soni V State 1990 Cr.L.J 2055(MP)

committed within the state.9 Whereas on the other hand, the Bombay
High Court has taken a contrary view and held that if the offense is
committed in one state but arrest is expected in another State, the High
Court in the latter state can entertain application for anticipatory bail. 10
The unique stand taken by the High Court of Karnataka and Gujarat
regarding the same appears to be more suitable interpretation wherein it
was held that:
Sec 438 Cr.P.C. provides relief to the person apprehending arrest even
though the court may not have jurisdiction to deal with the offence. He
can seek relief in the court within whose jurisdiction he ordinarily
resides. Anticipatory bail of limited duration can be granted with a
direction to the petitioner to approach the court concerned. Thus an
application under Sec 438 should be finally decided by only the court
within whose jurisdiction the alleged offence has been committed.11


The Courts have felt that wide discretionary power conferred by the
Legislature on the higher echelons in the criminal justice delivery
system cannot be put in the form of strait-jacket rules for universal
application as the question whether to grant bail or not depends, for its
answer upon a variety of circumstances, the cumulative effect of which
must enter into the judicial verdict. A circumstance which, in a given
case, turns out to be conclusive, may or may not have any significance
in another case. Nonetheless, the discretion under the Section has to be
exercised with due care and circumspection depending on circumstances
justifying its exercise.
Section 438(1) of the Code lays down a condition which has to be
satisfied before anticipatory bail can be granted. The applicant must
9 C.T. Mathew V Govt. of India 1985 Cr.L.J 1316 (Ker)
10 N.K Nayar V State 1985 Cr.L.J. 1887 (Bom)

11 Dr L.R. Naidu v State 1984 Cri LJ 757(Kant.) ; Neela J Shah V State of Gujarat
1998 Cri LJ 228 (Guj)

show that he has reason to believe that he may be arrested for a nonbailable offence. The use of the expression reason to believe shows
that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere fear is not belief, for which reason, it is
not enough for the applicant to show that he has some sort of a vague
apprehension that someone is going to make an accusation against him,
in pursuance of which he may be arrested. The grounds on which the
belief of the applicant is based that he may be arrested for a nonbailable offence, must be capable of being examined by the court
objectively, because it is then alone that the court can determine whether
the applicant has reason to believe that he may be so arrested. Sec
438(1) cannot be invoked on the basis of vague and general allegations,
as if to arm oneself in perpetuity against a possible arrest. Moreover if
an application for anticipatory bail is made to the High Court or the
Court of Session, it becomes imperative for the court to apply its own
mind to the question and decide whether a case has been made out for
granting such relief. It cannot leave the question for the decision of the
Magistrate concerned under Section 437 of the Code, as and when an
occasion arises. Such a course defeats the object of Section 438.
In regard to anticipatory bail, if the proposed accusation appears to stem
not from motives of furthering the ends of justice but from some ulterior
emotive, the object being to injure and humiliate the applicant by having
him arrested, a direction for the release of the applicant on bail in the
event of his arrest is generally made. On the other hand, if it appears
likely considering the antecedents of the applicant, that taking advantage
of the order of anticipatory bail he will flee from justice, such an order
is not made. But the converse of these propositions is not necessarily
true. It cannot be laid down as an inexorable rule that anticipatory bail
cannot be granted unless the proposed accusation appears to be actuated
by mala fides; and equally, that anticipatory bail must be granted if there
is no fear that the applicant will abscond. The nature and seriousness of
the proposed charges, the context of the events likely to lead to the
making of the charges, a reasonable possibility of the applicants
presence not being secured at the trial, a reasonable apprehension, that
witnesses will be tampered with and the larger interests of the public or

the State, are some of the considerations which the courts keep in
mind while deciding an application for anticipatory bail. In evaluation
of the consideration whether the applicant is likely to abscond, there can
be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away from
the course of justice, and more than there can be a presumption that the
former are not likely to commit a crime and the latter are more.
In considering a petition for grant of bail necessarily, if public interest
requires, detention of citizen in custody for purpose of investigation
could be considered and rejected, as otherwise there could be hurdles in
investigation even resulting in tempering of evidence.12
The Apex Court has held that anticipatory bail cannot be granted as a
matter of right. It is essentially a statutory right conferred long after the
coming into force of the Constitution and that it cannot be considered as
an essential ingredient of Article 21 of the Constitution. Therefore its
non-application to a certain special category of offences cannot be
considered as violative of Article 21.
A duty has been thrust on the courts, to examine the facts carefully and
to ensure that no prejudice is caused to investigation. It is a delicate
balance whereby the liberty of citizen and the operation of criminal
justice system have both to be safeguarded. Custodial interrogation of
such accused is indispensable necessary for the investigating agency to
unearth all the links involved in the criminal conspiracies committed by
the persons which ultimately led to capital tragedy. Where it is pointed
out that the action is mala fide or tainted the courts are required to reach
out the conclusion and do justice by preventing harassment and
unjustified detention. Specific events and facts must be disclosed by the
applicant in order to enable the court to judge of the reasonableness of
his belief, the existence of which is the sine qua non of the exercise of
power conferred by the section.13

12 K.K. Jivah V Union Territory AIR 1988 SC 1934

13 Gurbaksh Sibbia V State of Punjab 1980 AIR 1632

The High Court or a Court of Session exercise their discretion upon

examination of the facts and circumstances to grant anticipatory bail if
it thinks fit since denial of bail amounts to deprivation of personal
liberty, they lean against the imposition of unnecessary restrictions on
the scope of Section 438, especially when no such restrictions have been
imposed by the legislature in the terms of that section. An overgenerous 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. 14 But, while
granting such anticipatory bail, the Court may impose such conditions
as it thinks fit, but the object of putting conditions should be to avoid the
possibility of the person hampering investigation. Harsh, onerous and
excessive conditions which frustrate the very object of anticipatory bail
cannot to be imposed. Subjecting an accused to any condition other than
conditions mentioned in the Section is beyond the jurisdiction of the
Filing of F.I.R is not a condition precedent to the exercise of the power
under Section 438 and the imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
Anticipatory bail can be granted even after an F.I.R. is filed, so long as
the applicant has not been arrested. The provision cannot be invoked
after the arrest of an accused. Moreover the salutary provision contained
in Section 438 Cr.P.C. were introduced to enable the Court to prevent
the deprivation of personal liberty. It cannot be permitted to be
jettisoned on technicalities such as the challan having been presented
anticipatory bail cannot be granted

A Single Judge of Supreme Court in regard to length of the time for
which the order of anticipatory bails stay operative, in the case of KL
Verma v State held that
14 RavindraSaxena V State of Rajasthan(2010) 1 SCC 684

Anticipatory bail granted in anticipation of arrest in non-bailable cases,

does not mean that the regular court, which is to try the offender, is
sought to be bypassed. That is the correct procedure to follow because it
must be realized that the Court of Sessions or the High Court is grants
anticipatory bail at a stage when the investigation is incomplete and,
therefore, it is not informed about the nature of evidence against the
alleged offender. Therefore it was necessary that such anticipatory bail
orders should be of a limited duration only and ordinarily on the expiry
of that duration or extended duration the court granting anticipatory bail
should leave it to the regular court to deal with the matter on an
appreciation of evidence placed before it after the investigation has
made progress or the charge-sheet is submitted.
By this, the Court desired to convey that an order of anticipatory bail
does not ensure till the end of trial but it must be of limited duration as
the regular court cannot be bypassed. The limited duration must be
determined having regard to the facts of the case and the need to give
the accused sufficient time to move the regular court for bail and to give
the regular court sufficient time to determine the bail application. In
other words, till the bail application is disposed of one way or the other
the court may allow the accused to remain on anticipatory bail. To put it
differently, anticipatory bail may be granted for a duration which may
extend to the date on which the bail application is disposed of or even a
few days thereafter to enable the accused persons to move the higher
court, if they so desire.
Sec 438 does not mention anything about the duration to which a
direction for release on bail in the event of 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 fully justified in imposing conditions
including direction of joining investigation. In pursuance to the order of
the Sessions Court or the High Court, once the accused is released on
bail by the trial court, then it would be unreasonable to compel the
accused to surrender before the trial court and again apply for regular
bail. The Supreme Court declared the law laid down in the cases of K.L.

Verma v State, SalauddinAbdulsamad Shaikh v The State Of

Maharashtra and Sunita Devi V State of Bihar as per incurium and held
The validity of the restrictions that the accused released on anticipatory
bail must submit himself to custody and only thereafter can apply for
regular bail is contrary to the basic intention and spirit of section 438
Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of
fairness and reasonableness is implicit under Article 21 of the
Constitution of India. Directing the accused to surrender to custody after
the limited period amounts to deprivation of his personal liberty. It is
unreasonable to lay down strict, inflexible and rigid rules for exercise of
such discretion by limiting the period of which an order under this
section could be granted. Once the anticipatory bail is granted then the
protection should ordinarily be available till the end of the trial unless
the interim protection by way of the grant of anticipatory bail is
curtailed when the anticipatory bail granted by the court is cancelled by
the court on finding fresh material or circumstances or on the ground of
abuse of the indulgence by the accused.
In view of the clear declaration of law laid down by the Constitution
Bench in Sibbias case it would not be proper to limit the life of
anticipatory bail. When the court observed that the anticipatory bail is
for limited duration and thereafter the accused should apply to the
regular court for bail that means the life of section 438 Cr.P.C. would
come to an end after that limited duration. This limitation has not been
envisaged by the legislature. The Constitution Bench in Sibbias case
clearly observed that it is not necessary to re-write section 438 Cr.P.C.
Therefore, in view of the clear declaration of the law by the Constitution
Bench, the life of the order under section 438 Cr.P.C. granting bail
cannot be curtailed.

Section 438 is a procedural provision which is concerned with personal
liberty of an individual, 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.

Although the power to release on anticipatory bail can be described as
of an extraordinary character this would not justify the conclusion
that the power must be exercised in exceptional cases only. It is not
necessary that the accused must make out a special case for the
exercise of the power to grant anticipatory bail.
No straight jacket formula can be prescribed for universal application in
cases of anticipatory bail as each case has to be considered on its own
merits and in its facts and circumstances. Personal liberty being a very
precious fundamental right should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the case.
In case, the State considers the following suggestions in proper
perspective then perhaps it may not be necessary to curtail the personal
liberty of the accused in a routine manner:
1. Direct the accused to join investigation and only when the accused
does not cooperate with the investigating agency, then only the
accused be arrested.
2. Seize either the passport or such other related documents, such as,
the title deeds of properties or the Fixed Deposit Receipts/Share
Certificates of the accused.
3. Direct the accused to execute bonds;
The accused may be directed to furnish sureties of
number of persons which according to the prosecution are
necessary in view of the facts of the particular case.
The accused be directed to furnish undertaking that he
would not visit the place where the witnesses reside so
that the possibility of tampering of evidence or otherwise
influencing the course of justice can be avoided.
iii. Bank accounts be frozen for small duration during
It is an established principle that discretion vested in the court, in all
matters should be exercised with care and circumspection depending
upon the facts and circumstances justifying its exercise. Similarly, the
jurisdiction under section 438 Cr.P.C. should be exercised by the court

in a wise and careful manner which by their long training and

experience they are ideally suited to do. There is no justification for
reading into section 438 Cr.P.C. the limitations mentioned in section 437
Cr.P.C. The plentitude of the section must be given its full play.
The provisions of Section 438 should not be suspected as containing
something volatile or incendiary, which needs to be handled with the
greatest care and caution imaginable. A wise exercise of judicial power
inevitably takes care of the evil consequences which are likely to flow
out of its intemperate use. Neither inflexible guidelines can be provided
for grant or refusal of anticipatory bail nor should any attempt be made
to provide rigid and inflexible guidelines in this respect because all
circumstances and situations of future cannot be clearly visualized for
the grant or refusal of anticipatory bail. In any event, this is the
legislative mandate which the Courts are bound to respect and honor.
Anticipatory bail is a device to secure the individuals liberty; it is
neither a passport to the commission of crimes nor a shield against any
and all kinds of accusation, likely or unlikely.


The Code of Criminal Procedure, Ram Jethmilani & D.S

Thakur, 2015
Commentaries on Code of Criminal Procedure, Sir John
Woodroffe, 3rd edition, reprint 2014
The Code of Criminal Procedure (CRPC), Ratanlal &
Dhirajlal, revised by Justice Chandrachud, V.R.Manohar
& Dr. Avtar Singh, 17th edition, reprint 2009

Net sources
1. http://delhi-lawyer.blogspot.in/2012/06/bail-summarizedcrpc.html
2. https://www.legalserviceindia.com/2013/bail-a briefintroduction.html
3. www.indiankanoon.com

A critical overview

Submitted to: Prof. Sanjeev Sharma

Submitted by: S. Partha Swami

Roll. No.305/14
Section B
B.A.LL.B Vth Sem
1. Bail: definition
2. History
3. Sections of CRPC related to Bail
4. Jurisdiction
5. Consideration to exercise discretion
6. Duration Of Orders
7. Bibliography