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The Supreme Court has said that as arbitrary arrests continue to be pervasive, the discretionary power of courts to grant anticipatory bail cannot be curtailed and such protection can extend till the end of the trial.

A five-judge Constitution Bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, however, observed that if the court wants to limit the bail, it can attach special features.

The SC pointed to arrests during the freedom movement when people were jailed for protesting against British rule. “The spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens, and often times at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438,” the court said.

Read Judgement Brief Here:


The provision of anticipatory bail under Section 438 was introduced when the Code of Criminal Procedure (CrPC) was amended in 1973. It says…

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 sessions court 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 sessions court makes a direction, it may include such conditions in the light of the facts of the particular case, as it may think fit, including…

a. A condition that the person shall make himself available for interrogation by a police officer as and when required.

b. 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.

c. A condition that the person shall not leave India without the previous permission of the court.



The rights that are cherished deeply by citizens are fundamental, not the restrictions, the Supreme Court observed.

It also held that anticipatory bail application could be moved by a person even before filing of an FIR and added that the court could examine the seriousness and gravity of the offence to impose any condition on the petitioner, if necessary.

Referring to Indian history, the court said: “Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public was exercising their right to protest but was brutally suppressed and eventually jailed for long. The provision of pre-arrest bail was inserted in the statute 46 years ago and it has stood the test of time.”


Parliament has not thought it appropriate to curtail the power or discretion of the courts in granting pre-arrest or anticipatory bail, especially regarding the duration, or until charge-sheet is filed, or in serious crimes, the verdict said.