Anticipatory Bail in U.P.

(By Krishna kumar, ADJ/Spl. Judge(P.C. Court -5) Lucknow )

[Recently the provision of anticipatory bail has been reintroduced in U.P. vide Code of Criminal
Procedure (U.P.Amendment) Act, 2018 (U.P Act NO.4 of 2019) with effect from 06.07.2019]

Really speaking ‘anticipatory bail’ is a misnomer. It is not a bail presently granted by the
Court in anticipation of arrest. When anticipatory bail is granted by the court, it means that in
event of arrest the person shall be released on bail.

1. Object :- Section 438 of CRPC makes a provision enabling the superior Courts (High
Court and Court of Sessions) to grant anticipatory bail, i.e., a direction to release a person
on bail issued even before the person is arrested. The law commission considered the need
for such a provision and observed in its 41st Report :-

"The necessity of 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 him first to submit to custody,
remain in prison for some days and then apply for bail."

2. Distinction between ordinary order of bail and order of anticipatory bail

The distinction between an ordinary order of bail and an order of anticipatory bail is that
whereas the former is granted after arrest and therefore means release from the custody of the
police, the latter is granted in anticipation of arrest and is therefore effective at the very moment
of arrest.

3. Jurisdiction of High Court and court of sessions:-

Concurrent jurisdiction of High Court & Sessions Court:- According to section 438
(1) an application for anticipatory bail can be made to the High Court or court of sessions. The
full bench of the Allahabad High Court in Omkar Nath Agarwal vs State, 1976 Cri LJ 1142
has taken the view that a bail application under section 438 may be moved in the High Court
without the applicant taking recourse to the court of session.
However recently on 08-07-19, Hon'ble High of Allahabad (Lucknow Bench) has
decided bail application No. 6478 of 2019 incorporating a legal question:- " Whether the
application filed under Section 438 of Cr.P.C. is maintainable before the High Court without
exhausting remedy under the said provision before the Court of Sessions which has concurrent
jurisdiction with that of the High Court?” It has been held:” The bail application filed under
section 438 Cr.P.C. is not maintainable before the High Court without exhausting remedy
before the court of Sessions, which has got concurrent jurisdiction. However, for extraneous or
special reasons, the High court can also exercise such power for grant of the remedy under the
said provisions.”

4. If application has already been made before High Court, then second
application before Sessions Court is not maintainable.[S. 438(7) Cr.P.C.]

5. Jurisdiction when offence is committed within the territory of several

courts:
The Hon’ble Supreme Court in Salauddin Abdulsamad Shaikh vs State of
Maharashtra, 1998 SCC (Cri) 406, expressed the view that the question of granting anticipatory
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bail to any person who is allegedly concerned with the offence must for all practical purposes be
considered by the courts within whose territorial jurisdiction such offences could have been
perpetrated.

6. No anticipatory bail after arrest:- Section 438 cannot be invoked after the arrest of
the accused. The grant of anticipatory bail to an accused who is under arrest involve contradiction
in terms, insofar as the offence or offences for which he is arrested are concerned. ( Gurbaksh
Singh Sibbia Vs. The State of Punjab, AIR 1980 SUPREME COURT 1632)
. After arrest, the accused must seek his remedy under S. 437 or S. 439 if he wants to be
released on bail in respect of the offence or offences for which he is arrested.

7. Presence of accused is not necessary to dispose of the application of

anticipatory bail. [ Hon’ble High Court C.L. No. PS(RG)/448/2019:Allahabad,
Dated July 08, 2019]

8. Conditions for grant of anticipatory bail:- Reasonable apprehension

of arrest for a non-bailable offence
Section 438 (1) of Cr.P.C. confers on the High Court and the Court of sessions the
power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on
the accusation of having committed " a non-bailable offence".
If the offence is non-bailable, it is immaterial for the purpose of section 438 whether the
offence is cognizable or non-cognizable, or whether it is one under the IPC or under any other
law.
In Joginder alias Jindi v. State of Haryana AIR 2009 SC (Supp) 977, it was held that
petition for anticipatory bail, in relation to bailable offences is misconceived. S.438 relates to non-
bailable offences.

Hon'ble Supreme Court in this context took the view in Gurbaksh Sigh Sibbia Vs state
of Punjab, 1980 SCC (Cri) 465, that there is no restriction on granting anticipatory bail merely
because the alleged offence is one punishable with death or imprisonment for life. But provision
of section 438 Cr.P.C. in Uttar Pradesh shall not be applicable in the offences, in which death
sentence can be awarded. [S. 438(6) Code of Cri. procedure (U.P.Amendment) Act, 2018 (U.P
Act NO.4 of 2019)]

Section 438 (1) lays down a condition which has to be satisfied before anticipatory bail
can be granted. The applicant must show that he has "reason to believe" that he may be arrested
for a non-bailable 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 non bailable 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. Section 438 (1) therefore cannot be invoked on the basis of vague and general
allegations, as if to arm one-self in perpetuity against a possible arrest. Otherwise, the number of
applications for anticipatory bail will be as large as, at any rate, the adult populace. 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. ( Gurbaksh Singh
Sibbia Vs. The State of Punjab, AIR 1980 SUPREME COURT 1632)
Section 438 is a procedural provision which is concerned with the personal liberty of an
individual who is entitled to plead innocence, since he is not on the date of application, for
exercise of power under S. 438 of the Code, convicted for the offence in respect of which he seeks
bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-
bailable offence. Use of the expression 'reason to believe' that he may be arrested in a non-
bailable offence shows that the apprehension that he may be 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 vague apprehension that someone is going to make an accusation
against him in pursuance of which he may be arrested. Grounds on which the belief of the
applicant is based that he may be arrested in non-bailable offence must be capable of being
examined. If an application is made to the High Court or the Court of Session, it is for the Court
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concerned to decide whether a case has been made out for granting the relief sought. The
provisions cannot be invoked after arrest of the accused. A blanket order should not be generally
passed.( Adri Dharan Das v. State of W. B. AIR 2005 SUPREME COURT 1057)

9. Filing of FIR not mandatory

The filing of a first information report is not a condition precedent to the exercise of the
power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be
shown to exist even if an FIR is not yet filed. Anticipatory bail can be granted even after an FIR is
filed, so long as the applicant has not been arrested (Gurbaksh Singh Sibbia Vs. The State of Punjab,
AIR 1980 SUPREME COURT 1632)

10. Court cannot restrain arrest in anticipatory bail

In Adri Dharan Das v. State of W. B., AIR 2005 SUPREME COURT 1057, it was held that
while dealing with the application of anticipatory bail the Court cannot restrain arrest. If interim
order restraining arrest is passed while dealing with application under S. 438, it would amount to
interference in investigation. Such order cannot be passed under S. 438.
In Parvinderjit Singh and Anr. v. State (U. T. Chandigarh) and Anr, AIR 2009
SUPREME COURT 502, it was held,
“The role of the investigator is well-defined and the jurisdictional scope of interference by
the Court in the process of investigation is limited. The Court ordinarily will not interfere with the
investigation of a crime or with the arrest of accused in a cognizable offence. An interim order
restraining arrest, if passed while dealing with an application under Section 438 of the Code will
amount to interference in the investigation, which cannot, at any rate, be done under Section 438
of the Code.”

11. No blanket order of anticipatory bail

In Adri Dharan Das v. State of W. B., AIR 2005 SUPREME COURT 1057, it was held
that use of expression 'reason to believe' shows that the apprehension that he may be arrested must
be founded on reasonable grounds and such grounds must be capable of being examined. Mere
fear is not sufficient ground. Blanket order that 'applicant shall be released on bail whenever
arrested for whichever offence whatsoever', cannot be passed. It was observed:

“It follows from the very language of the section which requires the applicant to show that
he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable
grounds only if there is something tangible to go by on the basis of which it can be said that the
applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue
to the effect that the applicant shall be released on bail 'whenever arrested for whichever offence
whatsoever'. Such 'blanket order' should not be passed as it would serve as a blanket to cover or
protect any and every kind of allegedly unlawful activity. An order under S. 438 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 accusation likely or unlikely.”
Normally a direction should not be issued to the effect that the applicant shall be released
on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be
passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful
activity. An order under Section 438 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.

12. Anticipatory bail can be granted even after filing of Chargesheet

In Bharat Chaudhary v. State of Bihar, AIR 2003 SUPREME COURT 4662, it was held
that Courts have power to grant anticipatory bail in non-bailable offences even when cognizance
is taken or charge-sheet is filed provided facts of case requires Courts to do so.
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13, Interim order & notice to Public Prosecutor

Interim anticipatory bail order can be passed without notice to public prosecutor. Section
438 does not require that a notice be given to the PP before the application for anticipatory bail is
considered by court and legally it is possible to pass an ex parte interim order of anticipatory bail.
However when an interim order is passed, the notice of it should be given to the public prosecutor
and the superintendent of police to afford them an opportunity of hearing at the final disposal of
the application. [Section 438(3) Cr.P.C.]

14. Application of anticipatory bail should be decided within 30 days. [S.

438(5) Cr.P.C.]

15. Considerations in Anticipatory Bail

Section 438(1) Cr.P.C. provides that the court may, inter alia, take following factors into
considerations while dealing with an application of anticipatory bail:

(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 arrest.

There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as
appreciation of the case as to whether or not a bail is to be granted, is concerned. However,
neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail
being an extraordinary privilege should be granted only in exceptional cases. The judicial
discretion conferred upon the court has to be properly exercised after proper application of mind
to decide whether it is a fit case for grant of anticipatory bail.

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 applicant’s 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 court’s
keep in mind while deciding an application for anticipatory bail.’

In Siddharam Satlingappa Mhetre v. State of Maharashtraand Ors, AIR 2011 SUPREME COURT
312, the Supreme Court held that grant on refusal of anticipatory bail should necessarily depend
on facts and circumstances of each case. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused 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;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very
large number of people.
(vii) The Courts must evaluate the entire available material against the accused very carefully.
The Court must also clearly comprehend the exact role of the accused in the case. The cases in
which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the
Court should consider with even greater care and caution because over implication in the cases is
a matter of common knowledge and concern;
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(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be caused to the free, fair and full investigation
and there should be prevention of harassment, humiliation and unjustified detention ofthe
accused;
(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension
of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness
that shall have to be considered in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.
In Bhadresh Bipinbhai Sheth v. State of Gujarat and Anr., AIR 2015 SUPREME COURT
3090, the Supreme court has explained the principles in these words:

“23. The principles which can be culled out, for the purposes of the instant case,
can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the
aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The
court should also examine the fact whether there is any family dispute between the accused and
the complainant and the complainant must be clearly told that if the complaint is found to be false
or frivolous, then strict action will be taken against him in accordance with law. If the connivance
between the complainant and the investigating officer is established then action be taken against
the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly
comprehended. Before arrest, the arresting officer must record the valid reasons which have led to
the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded
immediately after the arrest, so that while dealing with the bail application, the remarks and
observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the
facts of the case. The discretion to grant bail must be exercised on the basis of the available
material and the facts of the particular case. In cases where the court is of the considered view that
the accused has joined the investigation and he is fully cooperating with the investigating agency
and is not likely to abscond, in that event, custodial interrogation should be avoided. A great
ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious
consequences not only for the accused but for the entire family and at times for the entire
community. Most people do not make any distinction between arrest at a pre-conviction stage or
post-conviction stage.
(iv) There is no justification for reading into Section 438, Cr.P.C. the limitations
mentioned in Section 437, Cr.P.C. The plentitude of Section 438 must be given its full play. There
is no requirement that the accused must make out a "special case" for the exercise of the power to
grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438,
Cr.P.C. to a dead letter. A person seeking anticipatory bail is still a free man entitled to the
presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by
the acceptance of conditions which the court may deem fit to impose, in consideration of the
assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that
after evaluating the averments and accusations available on the record if the court is inclined to
grant anticipatory bail then an interim bail be granted and notice be issued to the Public
Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail
application or confirm the initial order of granting bail. The court would certainly be entitled to
impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant
would be at liberty to move the same court for cancellation or modifying the conditions of
anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail
granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to
cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of
the accused, the Public Prosecutor or the complainant, on finding new material or circumstances
at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused
is released on anticipatory 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.
(viii) 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
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discretion vested with the court under Section 438, Cr.P.C. should also be exercised with caution
and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion
conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of
anticipatory bail because all circumstances and situations of future cannot be clearly visualised for
the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or
refusal of anticipatory bail should necessarily depend on the facts and circumstances of each
case.”

16. Res Judicata in bail

In Rani Dudeja v. State of Haryana, AIR 2017 SC (Supp) 253, it was held that second
bail application filed on changed circumstances cannot be rejected on ground of withdrawal of
earlier petition and needs to be considered on merits. Principle of res judicata, not applicable to
bail application.

17. Use of discretion in granting anticipatory bail:-

There is divergence of opinion on this issue. In ( Gurbaksh Singh Sibbia Vs. The State of
Punjab, AIR 1980 SUPREME COURT 1632) the five judge bench of SC held that the courts have
very wide discretion in matters of anticipatory bail. It was held:
"The court may deem fit" used in Section 438 (2) in regard to subsection (1) CRPC and
the absence of any specific restraints on the exercise of the power to grant anticipatory bail clearly
indicate that the legislature intended to confer and has in fact conferred very wide direction on the
High Court and the Court of session to grant anticipatory bail. Similarly, the courts are free to
refuse bail if the circumstances of the case so warrant, on considerations similar to those
mentioned in section 437 or which are generally considered to be relevant under section 439 of
the code”
Hon'ble Supreme Court in another case Poker Ram Vs State of Rajasthan, (1985) SCC
(Cri.) 297, has held the direction in granting anticipatory bail undoubtedly to be exercised with
care of circumspection; but then it will not be correct to say that the power to grant anticipatory
bail must be exercised in exceptional cases only.

Again in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors, AIR 2011 SUPREME
COURT 312, it was held that S.438 need not be invoked only in exceptional or rare cases and the
discretion must be exercised on basis of available material and facts of particular case.

On the other hand, in ( Adri Dharan Das v. State of W. B., AIR 2005 SUPREME COURT
1057) it was held that power to grant anticipatory bail is extraordinary and it is to be exercised
only in exceptional cases.

“The power exercisable under S. 438 is somewhat extraordinary in character and it is only
in exceptional cases where it appears that the person may be falsely implicated or where there are
reasonable grounds for holding that a person accused of an offence is not likely to otherwise
misuse his liberty then power is to be exercised under S. 438. The power being of important
nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the
High Court. It is the power exercisable in case of an anticipated accusation of non-bailable
offence. The object which is sought to be achieved by S. 438 of the Code is that the moment a
person is arrested, if he has already obtained an order from the Court of Session or High Court, he
shall be released immediately on bail without being sent to jail.”

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
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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”

However, the view in Sibbia’s case is the view of 5 judges’ bench and hence it is to be
given primacy.

18. Duration of order of anticipatory bail

In ( Gurbaksh Singh Sibbia Vs. The State of Punjab, AIR 1980 SUPREME COURT 1632), it
was held: Operation of an order passed under S. 438 (1) should not necessarily be limited in point of time.
The Court may, if there are reasons for doing so, limit the operation of the order to a short period until
after the filing of an F. I. R. in respect of the matter covered by the order. The applicant may in such cases
be directed to obtain an order of bail under S. 437 or 439 of the Code within a reasonably short period after
the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule
should be not to limit the operation of the order in relation to a period of time.
The above view was reiterated in Siddharam Satlingappa Mhetre v. State of Maharashtra
and Ors, AIR 2011 SUPREME COURT 312 case. It was held:
“The restrictions imposed by Court, namely, that the accused released on anticipatory bail must
submit himself to custody and only thereafter can apply for regular bail. This 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. 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 theindulgence by the accused.
However, the 3 judge bench of Supreme Court in. Salauddin Abdulsamad Shaikh Vs.
State of Maharashtra, AIR 1996 SUPREME COURT 1042, has held that Anticipatory bail
orders should be of a limited duration only.
In Sunita Devi v. State of Bihar, AIR 2005 SUPREME COURT 498, it was held that grant
of blanket protection given for unlimited period clearly untenable and is liable to be set aside . It
was held that observations that "extension of time to move higher Courts may be given to
accused" in (1996) 7 Scale 20, is per incuriam. It was held:
“For making an application under S. 439 the fundamental requirement is that the accused
should be in custody. The protection in terms of S. 438 is for a limited duration during which the
regular Court has to be moved for bail. Obviously, such bail is bail in terms of S. 439 of the Code,
mandating the applicant to be in custody. Otherwise, the distinction between orders under Ss. 438
and 439 shall be rendered meaningless and redundant. If the protective umbrella of S. 438 is
extended for unlimited period the result would be clear bypassing of what is mandated in S. 439
regarding custody. Therefore the order of the High Court granting unconditional protection is
clearly untenable and is set aside. However the petitioner is granted a month's time to apply for
regular bail after surrendering to custody before the concerned Court which shall deal with the
application in accordance with law. The view regarding extension of time to 'move' the higher
Courts as culled out from decision in (1996) 7 Scale 20, treated to have been rendered per
incuriam, as no reference was made to prescription in S. 439, Cr.P.C. requiring accused to be in
custody.”
Due to conflicting views, the matter has recently been referred to larger bench by Supreme
court in SUSHILA AGGARWAL & ORS.v. STATE (NCT OF DELHI) & ANR,
SLP(Criminal)NOS. 7281-7282 OF 2017, Judgement Date : May 15, 2018

19. Conditions in bail order

Section 438(2) Cr.P.C. as amended in Uttar Pradesh provides that if the court passes any
order granting anticipatory bail, such order shall include, inter alia, the following conditions,
namely:-
(i) that the applicant shall make himself available for interrogation by a police officer
as and when required;
(ii) that the applicant 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;
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(iii) that the applicant shall not leave India without the previous permission of the
court; and
(iv) such other conditions as may be imposed under sub-section (3) of section 437, as if
the bail were granted under that section.

Under under sub-section (3) of section 437 Cr.P.C., the Court may impose any condition
which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this Chapter, or

(b) 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

(c) otherwise in the interests of justice.

The High Court of Court of session, while granting bail may impose condition as
mentioned in Section 438(2). The condition mentioned in that sub-section are only illustration and
court may impose other conditions, if it thinks fit. There is no warrant for reading into Section
438 the conditions subject to which bail can be granted under S. 437 (1).

In Munish Bhasin and Ors v. State (Govt. of N. C. T. of Delhi) and Anr, AIR 2009
SUPREME COURT 2072, has been held that while granting anticipatory bail, harsh, onerous,
excessive, irrelevant or freakish conditions cannot be imposed on accused. In this case, a
complaint was made by wife against husband alleging cruelty. While granting anticipatory bail to
accused husband, direction issued by High Court requiring him to pay maintenance to wife when
she has already approached appropriate Court for said relief was held improper.

20. Absconder/proclaimed offender not entitled to anticipatory bail.

In State of Madhya Pradesh v. Pradeep Sharma, AIR 2014 SUPREME COURT 626, it
has been held that a person who is declared absconder/proclaimed offender is not entitled to
anticipatory bail.

21. Anticipatory bail in SC/ST cases.

In Vilas Pandurang Pawar and Anr v. State of Maharashtra and Ors, AIR 2012
SUPREME COURT 3316, it has been held that the bar to grant of anticipatory bail in SC/ST cases
is applicable only if complaint contains specific averment that accused insulted or intimidated
complainant by calling him with caste name. It was also held that Court denying anticipatory bail
ought to be satisfied that offence under Act is prima facie made out.

22. Cases in which anticipatory bail cannot be granted:[S. 438(6) Cr.P.C.]

(i) Cases of Unlawful Activities (Prevention) Act, 1967;
(ii) Cases of NDPS Act;
(iii) Cases of Official Secrets Act, 1923;
(iv) Cases of the U.P. Gangsters and Anti-Social Activities ( Prevention) Act, 1986.
(v) Cases punishable with death sentence

23. Cancellation of anticipatory bail

Anticipatory bail can also be cancelled on those principles on which regular bail is
cancelled. In State of Punjab v Raninder Singh, AIR 2008 SC 609, it was held that anticipatory
bail may be cancelled if the accused does not appear before the investigating officer for
interrogation and commits breach of order granting anticipatory bail.

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