Time limit on advance bail violates personal liberty: SC
A Constitution Bench of the Supreme Court ruled that the protection of anticipatory or pre-arrest bail cannot be limited to any time frame or fixed period as the denial of bail amounts to deprivation of the fundamental
right to personal liberty in a free and democratic country.
➢ The questions referred to the Constitution Bench were twofold:
➢ Whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court.
➢ Whether the life of anticipatory bail should end when the accused is summoned by the court.
➢ A five-judge Bench, led by Justice Arun
Mishra, acknowledged that anticipatory bail helps thwart influential powers from implicating their
rivals in false cases.
➢ Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy
of detention in jail for days on end and disgrace to their reputation.
➢ “The life or duration of an anticipatory bail order does not normally end at the time and stage when
the accused is summoned by the court, or when charges are framed, but can continue till the end of
the trial,” the court held.
➢ The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long
as there is a reasonable basis for the apprehension of arrest and clarity of facts.
➢ An application for anticipatory bail should be based on concrete facts and not vague or general
allegations. The application should also contain bare essential facts relating to the offence and why
the applicant reasonably apprehends arrest.
Restrictions on Anticipatory bail:
➢ Nothing in Section 438 of the CrPC compels or obliges courts to impose conditions limiting the relief
in terms of time, or upon filing of FIR or recording of statement of witnesses by the police during
investigation or inquiry, etc.
➢ Courts, depending on the seriousness of the threat of arrest, need not wait to hear the prosecution’s
version before granting anticipatory bail. Issuance of notice to the prosecutor can be done
simultaneously while granting protection from arrest to the accused.
➢ The grant of protection should not be blanket but confined to specific offence or incident for which
relief from arrest is sought. It is open for the police to move court for arrest of the accused if there is
any violation of bail conditions, the Bench said.
➢ The court held that protection against arrest should adjust in favour of the accused. Restricting the
protection would prove unfavourable for the accused.
➢ However, it is open for a court to impose appropriate conditions for grant of anticipatory bail if the
specific facts or the features of the offence involved demand it.
➢ Courts have to consider the nature of the offence, the role of the person, the likelihood of his
influencing the course of investigation or tampering of evidence, including intimidating witnesses and
➢ But restrictions/conditions can be imposed only on a case-to-case basis.
➢ Special or other restrictive conditions may be imposed if the case or cases warrant, but should not be
imposed in a routine manner in all cases, the Bench pointed out.