Anticipatory Bail

1. Anticipatory Bail Application Not Maintainable By A Person Who

Apprehends Arrest After Cancellation Of Regular Bail: Supreme
Court [Manish Jain v. Haryana Pollution Control Board]
A bench comprising Justices Navin Sinha and KM Joseph held that a person
cannot file an anticipatory bail application apprehending arrest following the
cancellation of his regular bail. This is because a person released on bail remains
under the 'constructive custody' of law and a person in custody cannot seek
anticipatory bail, explained the top court.
2. Anticipatory Bail Cannot Be Limited To A Fixed Period Except In Special
And Peculiar Circumstances: SC [Sushila Aggarwal & Ors. v. State (NCT of
Delhi) & Anr.]
A Constitution Bench of Justices MR Shah, S. Ravindra Bhat, Arun
Mishra, Indira Banerjee and Vineet Saran held that anticipatory bail should not
invariably be limited to a fixed period. But if there are any special or peculiar
features necessitating the court to limit the tenure of anticipatory bail, it is open for
it to do so. The Court also held that life or duration of an anticipatory bail order
does not end normally 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 except
in special and peculiar cases.
It overruled the judgment in Salauddin Abdulsamad Shaikh v. State of
Maharashtra, 1996 (1) SCC 667, which restricted the scope of Section 438 of the
Cr.PC. It also overruled Siddharam Satlingappa Mhetre v. State of Maharashtra &
Ors., 2011 (1) SCC 694, to the extent it held that no conditions can be imposed
while granting an order of anticipatory bail, is incorrect.
3. Section 438 CrPC Doesn't Mandate That Sessions Court Must Be Moved
First; But Special Circumstances Must Be Shown To Directly Approach HC :
Allahabad HC Full Bench [Ankit Bharti v. State of UP & Anr.]
A 5-judge bench of the Allahabad High Court composing of Chief Justice Govind
Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and
Rahul Chaturvedi clarified that under special circumstances, a person
apprehending arrest may approach the High Court directly seeking anticipatory
bail, without approaching the Sessions court first.
Section 438 confers concurrent jurisdiction on both High Court and the Sessions
Court to entertain an application for anticipatory bail. Notwithstanding this
concurrence, the bench observed that strong, cogent, compelling and special
circumstances must necessarily be found to approach the High Court first, without
the avenue as available before the Court of Sessions being exhausted. The bench
further clarified that it was not inclined to "enumerate" the special circumstances in
which an applicant may move to the high court directly. Such circumstances, it
held, must be left to the "judicious discretion" of the Court, to be exercised on a
case to case basis.
4. Application For Anticipatory Bail Is Maintainable Even After An Accused
Is Declared "Absconder": Madhya Pradesh HC [Balveer Singh Bundela v.
State of Madhya Pradesh]
A Bench of Justice Anand Pathak observed that declaration of an accused as an
"absconder" under Section 82 of CrPC does not preclude him from filing an
application for seeking anticipatory bail. It held that according to the Apex Court's
decision in Lavesh v. State (NCT Of Delhi), (2012) 8 SCC 73, a person who is
proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits
to seek anticipatory bail. It clarified that such application deserves dismissal on
merits if he is declared as absconder under Section 82 of Cr.P.C. but application is
certainly maintainable.
It held that the judgment does not talks about "maintainability" of anticipatory bail
application after a person is declared absconder but, it merely suggests that the
absconder loses "entitlement" to bail.
5. Anticipatory Bail Can Be Granted Even After Chargesheet Has Been Filed:
Allahabad High Court [Adil v. State of UP]
A single bench of Justice Siddharth held that anticipatory bail can be granted
even after a chargesheet in the criminal case has been filed. The Court, in its
decision, cited the case of Sushila Agarwal v. State (NCT of Delhi) and held that
the anticipatory bail need not be in place for a limited duration of time. In many
cases, it can even go on till the conclusion of the trial. The High Court's power to
grant an applicant anticipatory bail doesn't conclude after the submission of the
chargesheet.
The Bench quoted from the Sushila case, "If the facts of the given case make the
applicant entitled for grant of anticipatory bail, even after submission of charge
sheet against him and cognizance of the same by the Court, the second
anticipatory bail would be maintainable before the High Court even though the
applicant was earlier granted anticipatory bail till the submission of charge sheet
by the High Court."
Grounds for Grant/ Refusal of Bail
1. Unemployment Due To COVID A Dominating Factor: Madras High Court
Grants Bail To Theft Accused [Deepak & Anr. v. State]
In the peculiar circumstances created by the pandemic and a prolonged lockdown
which affected the livelihood of many, a Bench of Justice SM
Subramaniam granted bail to two-person accused of committing theft.
"Considering the probable circumstances, and the problems of unemployment,
which are the dominating factors to be considered for grant of bail in such
cases, keeping this kind of persons inside the jail for a longer duration would be
detrimental not only to the individual, but also to the society at large," the Court
opined.
2. Parity Cannot Be The Sole Ground For Granting Bail: Allahabad
HC [Gajendra Singh v. State of UP]
A single-Judge bench of Justice Ravi Nath Tilhari held that "parity" with the co-
accused cannot be the sole ground for granting bail and that each bail application
has to be decided on the basis of its own merits. Reliance was placed on Rakesh
Kumar Pandey v. Munni Singh @ Mata Bux Singh & Anr., where the Supreme
Court had denounced the order of the High Court granting bail to the co-accused
on the ground of parity in a heinous offence.
3. Factors Like Gravity & Seriousness Of Alleged Offence By Themselves
Cannot Be The Basis To Refuse Bail: SC [Prabhakar Tewari v. State of UP]
The bench of Justice Deepak Gupta and Justice Aniruddha Bose observed that
the factors like gravity and seriousness of offences alleged against an accused by
themselves cannot be the basis for refusal of prayer for bail.
While hearing an appeal against an Allahabad High Court order that granted bail to
two accused persons allegedly involved in a murder case, the Top Court said that
the offence alleged no doubt is grave and serious and there are several criminal
cases pending against the accused. However, these factors by themselves cannot be
the basis for refusal of prayer for bail.
Cancellation of Bail
1. Mere Registration Of Multiple Cases Not A Ground To Cancel Bail:
Karnataka High Court [Ms. X v. State of Karnataka]
A bench of Justice H P Sandesh dismissed a petition filed by a rape survivor
seeking to cancel bail granted to the accused on the ground that he is a habitual
offender and has similar cases registered against him.
The Court said "In the absence of any cogent material on record, the liberty of any
person as envisaged under Article 21 of the Constitution of India, cannot be
curtailed on the mere ground of the number of cases being pending against him. It
is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases
when it causes miscarriage of justice, if it is not invoked and the same has to be
exercised sparingly and not mere asking of the cancellation of bail."
Bail Granted In One Case Can't Be Cancelled On The Ground That Another FIR Is
Registered: Karnataka HC
Conditions for Grant of Bail
1. Rights Of Accused Should Not Become Illusory By Imposition Of
Disproportionate Bail Conditions: SC [Parvez Noordin Lokhandwalla v. State of
Maharashtra]
The bench comprising Justices DY Chandrachud and Indira Banerjee observed
that the conditions which a court imposes for the grant of bail have to balance the
public interest in the enforcement of criminal justice with the rights of the accused.
It said that though the competent court is empowered to exercise its discretion to
impose "any condition" for the grant of bail under Sections 437 (3) and 439 (1) (a)
of the CrPC, the discretion of the court has to be guided by the need to facilitate
the administration of justice, secure the presence of the accused and ensure that the
liberty of the accused is not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice.
It added, "The human right to dignity and the protection of constitutional
safeguards should not become illusory by the imposition of conditions which are
disproportionate to the need to secure the presence of the accused, the proper
course of investigation and eventually to ensure a fair trial."
2. Condition To Deposit Amount In Corona Relief Fund For Bail Is Unjust &
Improper: Kerala HC [Chinna Rao Swayamvarappu v. State of Kerala]
A Single Bench of Justice CS Dias quashed as "improper and unjust", the bail
condition imposed by a Sessions Judge that the petitioner should deposit an
amount of Rs 25,000/- towards the Corona Relief Fund. It made a reference to the
Supreme Court's verdict in Moti Ram v. State of Madhya Pradesh, where it was
held that the imposition of cash security or deposit of any amount for grant of bail
is unjust, irregular and improper.
3. Delhi HC Calls For Use Of GPS Tracking System To Monitor Movement
Of Accused Released On Bail [State (NCT of Delhi) v. Sanjeev Kumar Chawla]
A single bench of Justice Asha Menon called for the use of tracking systems such
as GPS tracking system to monitor the movement of accused who have been
released on bail. The judge observed that the case at hand "brought to the fore the
need for investigative agencies and the Government to consider the use of
advances in technology to track under-trials in cases of this nature where the State
may fear that an accused may flee from trial".
"Digital and electronic equipment, as presently used in America, ought to be
introduced in India, so that a tracking system similar to the GPS Tracking System,
can be used to monitor the movement of the accused released on bail, allowing the
authorities to gather information all the time while permitting the accused to
undertake the usual and ordinary activities of normal life", she added.
4. Bail Condition To Keep Foreigner In Detention Centre Not Violative Of
Article 21 : Karnataka HC [Toichubek Uulu Bakytbek v. State of Karnataka]
A Bench of Justice Hanchate Sanjeevkumar dismissed a petition filed by a
Kyrgyzstan national seeking to relax bail condition imposed by the trial court
directing authorities to keep him in a detention center, till disposal of the case
registered against him under the Foreigners Act. The Court said, "Imposition of
such condition, placing the petitioner in Detention Center cannot be said to be
harsh or even illegal and unjustifiable and it is not violative of Article 21 of the
Constitution of India."
It explained, "Detention Centers are not to be construed as putting them into a
Jail/Prison. The object behind such establishment of Detention Center and placing
foreign nationals against whom cases have been registered under the FA Act, is
just to restrict their movements across India and should not travel according to
their whims and fancies and remain untraceable or absconded or flee away from
justice."
List of peculiar bail conditions imposed by Courts:
• Stop Using Social Media For 2 Months, Report Digital Detoxification To
Police: MP HC's Bail Conditions For A Student
• [Bail Condition] Heavens Won't Fall Down If Rape Accused Is Stopped
From Using Social Media To Protect Victim's Privacy: Kerala HC
• 'Do Voluntary Service For Covid-19 Control': Bail Condition Imposed By
Patna HC
• Jharkhand HC Grants Bail On Condition To Donate To 'PM CARES Fund'
& Download 'Aarogya Setu App'
• Render Physical And Financial Assistance To Govt. Primary School As
Shiksha Swayamsewak : Madhya Pradesh HC Imposes Bail Condition
• 'Go For Counselling' : MP High Court Puts Bail Condition For Person
Arrested Over Anti-CAA Whatsapp Status
• 'Register As COVID-19 Warrior & Work In Covid-19 Disaster
Management': Madhya Pradesh HC Imposes Bail Condition
• Make A Video Call To Investigating Officer Every Monday, Also 'Drop A
Pin' On Google Maps: Delhi HC Directs Accused While Granting Him Bail
• Delhi Court Directs Continuously Switched On GPS and Bluetooth As A
Mandatory Condition for Bail
• Madhya Pradesh HC Directs Installation Of 'Non-Chinese' LED TV At A
Local District Hospital As Pre-Condition For Bail
• MP HC Asks Person Accused Of Outraging Modesty Of Neighbour To
Request Her To Tie TheRakhi With A Promise To Protect Her, as Bail
Condition (This order was challenged before the Supreme Court alleging
that it defeated the very purpose of granting bail by directing the alleged
perpetrator to establish contact with the victim. The Supreme Court
has reserved its verdict.)
Position of Victim during Accused' Bail hearings
1. 'Trial Court, While Deciding Bail, Should Consider Awarding Reasonable
Sum, As Interim Compensation, To Victims, Particularly Those From
Unprivileged Classes': Orissa HC [Sanjeet Sandha v. State Of Odisha]
While considering the bail application of an undertrial accused of attempted
murder by pouring petrol on the victim's body, a Single Bench of Justice SK
Panigrahi suggested that the Trial Courts should consider awarding a reasonable
amount as an interim award so that the victims, especially hailing from poor and
underprivileged classes, can utilise the said amount for the purpose of meeting
their medical expenses.
The Court observed that amidst increasing concern for compensation to victims of
crimes, Section 357A was inserted in the Code of Criminal Procedure in the year
2009. It was intended to reassure the victim that he or she is not forgotten in the
criminal justice system. Though the amendments in 2009, left the character of
Section 357 unaltered, with the introduction of this Section, the Court is
empowered to direct the State to pay compensation to the victim in such cases
where the compensation awarded under Section 357 is inadequate for such
rehabilitation, or where the case ends in acquittal or discharge but the victim has to
be rehabilitated.

Satender Kumar Antil vs. CBI LL 2021 SC 550

Case no. and Date: SLP(Crl) 5191/2021 | 7 October 2021
The Supreme Court has issued guidelines on the aspect of grant of bail to accused

who are not arrested during investigation on charge sheet being filed.

The bench comprising of Justices Sanjay Kishan Kaul and MM

Sundresh accepted the suggestions made by Additional Solicitor General SV Raja

and Senior Advocate Sidharth Luthra in this regard. The requisite conditions for this

guideline to apply are (1) Not arrested during investigation. (2) Cooperated
throughout in the investigation including appearing before Investigating

Officer whenever called.