A Study on the Concept of Anticipatory Bail.

Author : Arun Karthick V.A.

Register Number : 131901068

Department : B.A.LL.B. (Hons) 4th year

Saveetha School of Law

Saveetha Institute of Medical and Technical Sciences(SIMATS)

Saveetha University

Chennai - 600077

Email : [email protected]

Phone number : +91 99942 60892

Co-Author : Mrs. Udayavani V

Assistant professor

Saveetha School of Law

Saveetha Institute of Medical and Technical Sciences(SIMATS)

Chennai 600-077

Email id: [email protected]

Mobile number: +91 92454 06543

 A Study on the Concept of Anticipatory Bail.

Author : Arun Karthick V.A.1

Co-Author : Mrs. Udayavani V.2

ABSTRACT :

This paper discusses Anticipatory Bail as 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 that in event of arrest the person shall be released on bail. The research method
followed here is inquiry which deals with both primary and secondary sources of data and
various secondary sources are collected from books, journals, articles. a complete of 200 samples
has been taken, note of which is taken through a convenient sampling method . The statistical
tool which is used here is graphical representation from SPSS Tool and SPSS frequency table.
The findings of the research is that greater codification of anticipatory bail provisions to the
Legal Bail is especially required as the public and victims are already suffering as per the
response of the public for this research paper . There are various issues with the implementation
of the Anticipatory bail provisions . The aim of this research is to study the importance of
anticipatory bail provisions to the Criminal Procedure. The results show that it is important for
greater codification of anticipatory bail provisions is especially required to be more significant in
implementation.

KEYWORDS : Bail , Conduct , Prisoners responsibility , Accused , Prisoners.

1
Arun Karthick V.A.,131901068, 4th Year B.A.LL.B(Hons.), Saveetha School of law, Saveetha Institute of Medical
and Technical Sciences(SIMATS), Saveetha University, Chennai-77, Email ID: [email protected] ,
Contact No: 99942 60892
2
Mrs. Udayavani V. , Assistant Professor , Saveetha School of Law , Saveetha Institute of Medical and Technical
Sciences (SIMATS) , Saveetha University , Chennai-77, Email ID: [email protected] , Contact No:
9245406543
INTRODUCTION :

This paper discusses Anticipatory Bail as 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 that in event of arrest the person shall be released on bail. 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. Where a competent court grants anticipatory bail,
it makes an order that in the event of arrest, a person shall be released on bail. The power of
granting anticipatory bail is 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 offense 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.
An order of anticipatory bail constitutes an insurance against police custody following upon
arrest for offense or offenses in respect of which the order is issued. In other words, unlike a
post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose
favor it is issued is thereafter arrested on the accusation in respect of which the direction is
issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals
with how arrests are to be made, provides that in making the arrest, the police officer or other
person making the arrest “shall actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action. A direction under section 438 is
intended to confer conditional immunity from this touch or confinement.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas
the former is granted after arrest and thus 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. Police
custody is an inevitable concomitant of arrest for non-bailable offenses. The grant of
“anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far
as the offense or offenses for which he is arrested, are concerned. After arrest, the accused must
seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail
in respect of the offense or offenses for which he is arrested. The aim of this research is to study
about Sec 438 of Cr.P.C implemented in India in the course of granting anticipatory bail. Where
a competent court grants anticipatory bail, it makes an order that in the event of arrest, a person
shall be released on bail. The power of granting anticipatory bail is 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 offense is not likely to abscond, or otherwise misuse his liberty while on bail, such power is
exercised. The aim of this research is to study the importance of anticipatory bail provisions to
the Criminal Procedure.

OBJECTIVES :

● To study the importance of proper implementation of the Anticipatory bail in the

administration of criminal justice.
● To study about Sec 438 of Cr.P.C implemented in India in the course of granting
anticipatory bail.
● To interpret Sec 438 of Cr.P.C and that of Right to personal liberty.
● To examine the reasons for granting anticipatory bail to even criminals who perpetrated
heinous crimes.

REVIEW OF LITERATURE :

1. Adams(2017) says ‘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.’
2. Banks(2009) says ‘Anticipatory bail of current scenario .The Educational aspect of the
court which mandates the Bail in following various Act.The Bail Prisoners has been
undergoing greater process of research and its context.The Anticipatory bail of the lawyer
 should be maintained as it is considered to be important respect which the Bail should
show to their Bail.’
3. Brooks(2021) says ‘Anticipatory bail that exist before going onto examine the
respectable Quality of the Accuseds - Where the Accuseds should contribute more
personal time in improving the Anticipatory bail of themselves as a Bail Prisoners
conduct. The Prisoners aspects such as assumed about and much desired from a notion of
various responsibility through a Prisoners reformative model.’
4. Cooper(1996) says, ‘Anticipatory bail of Bails as it is tried up with the Bail aspect which
has to be considered crucially important as per the current context. The reformative
aspect of the people is basically considered necessary which has to be provided with the
essential components which are considered deemed necessary.’
5. Cranston(1996) says ‘Prisoners conduct of the legal experts has to mainly deal with
analysing the problem behind the legal field and their Prisoners conduct of the Accuseds
which has to be mainly analysed and should be made with understanding various
Prisoners aspects of the same.’
6. Dinesh Babu(2007) says ‘Anticipatory bail are considered in analysing with regard in its
various process of legal filed which defines Prisoners “The Prisoners are the Bail conduct
which the Bails has to abide with various conditions and the measures which has to be
analysed.’
7. Durkheim(1910) found that, ‘Anticipatory bail of the Accuseds has to be given specific
attention which has to be followed with specific procedures and process.The Prisoners
aspects such as assumed about and much desired from a notion of various responsibility
through a Prisoners reformative model.’
8. Maniku(2015) says that, ‘The reformative aspect of the Accuseds has to be followed in
inorder to analyze the importance .The Accuseds have to analyze the various Prisoners on
this Bail. The Anticipatory bail of the professors has to be taken into consideration and its
Prisoners aspects.’
9. Board of Prisoners(2002) elucidates, ‘Anticipatory bail is essential to become a legal
member of the country. Legal status of an reformative person where the legal status has to
be protected with specific status of the important Aspects of the Prisoners aspect .Legal
 employment of the lawyer has mainly been followed with the Prisoners aspect which is
considered to be necessary.’
10. Gayoso(2019) found that ‘Prisoners rights is considered the has not only a mere absolute
work but there exist certain rights for the Bail which has to be followed by the Bails and
should be taken into Account at the possible circumstances.The Prisoners aspects such as
assumed about and much desired from a notion of various responsibility through a
Prisoners reformative model.’
11. Meyers(2019) found that ‘Anticipatory bail Through participation a reformative person
exercises one’s right over the existing matter , and in various manners which has to be
dealt with by the Bails on a particular case and conceptual background.The Prisoners
aspects such as assumed about and much desired from a notion of various responsibility
through a Prisoners reformative model.’
12. Muldoon(2006) says, ‘Prisoners conduct of an Bail in stating that the capacity to
participate in the reformative aspect of the Bail which basically depends on how one is
socially and economically included in society Communities basically justify such
exclusion as a need for social cohesion which gives rise to the question what sort of
social cohesion is required for the present societies.’
13. Panicker(2014) says, ‘The Anticipatory bail has to be considered which has to be
improved to be analyzed .The main intention behind the Prisoners aspect of the
consideration which has to be taken into the consideration aspect of the Prisoners
conduct.The Prisoners aspects such as assumed about and much desired from a notion of
various responsibility through a Prisoners reformative model.’
14. Naagarazan(2006) says, ‘Anticipatory bail are important in the current scenario .The
Bails have been granted cover with specific powers through the Bails Act,1961.This has
to be provided with specific background measures in considering the same.’
15. Oakley(2019) says, ‘Prisoners procedural of the Bails is a status traditionally reserved for
the procedural aspects . Therefore, while many people might accept that there are various
procedural components as per the Prisoners conduct.’
16. Sunny(2018) says, ‘The distinction between other Prisoners privileges and other
Prisoners aspects is concerned if the subject is different when considering work in a
 Bail.The Prisoners aspects such as assumed about and much desired from a notion of
various responsibility through a Prisoners reformative model.’
17. Galick(2019) says, ‘The main aim is to analyze the other reforomative existence and their
view which cannot be basically considered to be different when it is concerned.The
Another aim of the Anticipatory bail to have a specific responsibility towards their
Bail.The Prisoners aspects such as assumed about and much desired from a notion of
various responsibility through a Prisoners reformative model.’
18. Thornton and Anthony(1996) says ‘the assumption is that ‘knowing’ oneself and others
in terms of ‘knowing’ power relations will lead to the ‘inclusion’ of different clients into
an understanding of Bail.The Prisoners aspects such as assumed about and much desired
from a notion of various responsibility through a Prisoners reformative model’.
19. Tigard(2019) found that ‘Prisoners Factors that affect basic existence at many levels of
society, from the most local through the most global; and it is increasingly necessary to
examine how different forces of identity and experience are related Prisonersly which
have multiple layers and are related with world Bail.’
20. Watson(2019) says, ‘The Prisoners aspects such as assumed about and much desired from
a notion of various responsibility through a Prisoners reformative model. This discussion
has provided some important critical questions required for further theorizing around a
global Prisoners’.

METHODOLOGY :

The study deals with empirical research Le non-doctrinal study.It deals with both primary as well
as secondary sources of data and various secondary sources like books, articles, research papers,
etc. were used for reference. The study deals with survey methods and the main tool for
calculating or analyzing the results is the cross tabulation count through percentage and
Correlation analysis. The method of collecting responses is through an online survey method by
getting people’s opinion and answers to the questionnaires. Convenient sampling method was
used for the purpose of this study.There are a total of 201 samples collected with regard to this
study. Age , gender and occupation are considered as the independent variables , whereas the
dependent variables are the implementation of the Anticipatory bail in the administration of
criminal justice.
ANALYSIS :

Table 1

Legend : Table classifying the respondents based on their age.

Table 2

Legend : Table classifying the respondents based on their Gender.

Table 3

Legend : Table classifying the respondents based on their Occupation.

Table 4

Legend : Table classifying the respondents based on their Educational Qualification.

Table 5

Legend : Table classifying the respondents based on their Income Slab.

Table 6

Legend : Scale on whether anticipatory bail provisions are being misused by offenders.
Graph 1

Legend : Graph representing correlation of occupation of respondents with the scale on whether
anticipatory bail provisions are being misused by offenders.

Table 7

Legend : Table representing the aim of Anticipatory bail.

Graph 2

Legend : Graph representing correlation of occupation of respondents with the aim of

Anticipatory bail

Table 8

Legend : Agreeability for the statement on anticipatory bail efficiently safeguards a person who
has been falsely accused of charges against him.
Graph 3

Legend : Graph representing correlation of occupation and response on anticipatory bail

efficiently safeguards a person who has been falsely accused of charges against him.

Table 9

Legend : Table representing the agreeability for the statement on principal object of bail is to
secure the attendance of the accused at the trial and ensure that he does not flee from justice.
Graph 4

Legend : Graph representing correlation of occupation of respondents with the agreeability for
the statement on principal object of bail is to secure the attendance of the accused at the trial and
ensure that he does not flee from justice.

Table 10

Legend : Table representing the scale on whether provisions of anticipatory bail can be
suspected as caution imaginable.
Graph 5

Legend : Graph representing correlation of occupation of respondents with the scale on whether
provisions of anticipatory bail can be suspected as caution imaginable.

RESULTS :

In Table 1 we can understand that 65% of respondents are female and 35% are males and in
Table 2, 50% of the respondents were between the age of 21 to 40 and successively 33% of the
respondents were between the age of 41 to 60 and lastly the remaining 17% of the respondents
were above the age of 60 years. In Table 3, 68% of the total respondents have completed their
undergraduate and 16% of the respondents have completed their post-graduation and 16% have
completed their high schooling, whereas in Table 4, 18% of the total respondents by the
government employees and 26.5% of the respondents for the private sector people, 32.5% of the
respondents are self-employed and the remaining 22.5 % of the respondents were Bails and in
Table 5, we also understand that 48.5% of respondents are earning less than 2.5 lakhs per
annum, 40.5% earn 2.5 to 10 lakhs and remaining 11% earns above 10 lakhs. In Table 6,
representing the scale on whether implementing anticipatory bail of legal Prisoners is decreasing,
85% of the respondents marked between 1-3 whereas remaining 15% the respondents marked
between 4-5. In Table 7 representing agreeability on the aim of Anticipatory bail is to uphold
honor and dignity of the legal sphere by securing accused persons, 63% of the respondents
agreed , only 11.5% respondents disagreed , whereas remaining 25.5% of the respondents are
neutral. In Table 8 representing the fundamental aim of Anticipatory bail where mostly 39.5% of
the respondents mentioned to emphasize the autocracy of Judicial Administration. In Table 9
representing the agreeability for the statement on principal object of bail is to secure the
attendance of the accused at the trial and ensure that he does not flee from justice, 59.5% of the
respondents agreed , only 20% respondents disagreed , whereas remaining 20.5% of the
respondents are in neutral. In Table 10 representing the scale on whether provisions of
anticipatory bail can be suspected as caution imaginable, mostly 72% of the respondents have
marked the highest between 3-5 on the scale whereas remaining 28% of the respondents have
marked the lowest between 1-2.

DISCUSSION :

In Table 1,we can understand that there are more young respondents and in Table 2, that most of
our respondents are females. In Table 3, we got more ideal employed respondents , whereas in
Table 4, we can understand that we got more educated respondents and in Table 5, we also
understand that most of our respondents are earning less than Rs.2.5 lakhs, so the economic
range of respondents are economically weaker. Table 6 represents that reformative values of
Prisoners are decreasing, in Table 7 represents that the aim of anticipatory is to uphold honor and
dignity of the legal sphere and in Table 8 represents that the fundamental aim of legal Prisoners
is to emphasize the autocracy of Judicial Administration. Table 9 represents that the principal
object of bail is to secure the attendance of the accused at the trial and ensure that he does not
flee from justice and Table 10 mentions provisions of anticipatory bail cannot be suspected as
caution imaginable.

LIMITATIONS :

Since the large portion of respondents are youngsters, they may not be much experienced to
respond and may be biased with unreliable contents of Social media. Responses are collected
only from the Respondents of the Chennai city only , which may reflect only the view of the
particular city. However these limitations did not affect the results drastically as due to recent
social issues through which the public is aware of implementation of the Anticipatory Bail to the
prisoners rather than the normal.

SUGGESTIONS :

On the off chance that the State considers the accompanying recommendations in a legitimate
point of view then maybe it may not be important to reduce the individual freedom of the
denounced in a normal way. Guide the denounced to join examination and just when the blame
does not participate with the researching office, at that point just the charge be captured. Seize
either the international ID or such other related reports, for example, the title deeds of properties
or the Fixed Deposit Receipts/Share Certificates of the denounced. Guide the charge to execute
bonds. The blame might be coordinated to outfit sureties of a number of people which as
indicated by the indictment are essential in perspective of the actualities of the specific case. The
blame be coordinated to outfit undertaking that he would not visit where the witnesses live with
the goal that the likelihood of altering of confirmation or generally impacting the course of
equity can be maintained a strategic distance from. Financial balances are solidified for little
span amid examination.

CONCLUSION :

As the aim of this research is to research the importance of anticipatory bail provisions to the
Criminal Procedures, Section 438 is a procedural arrangement which is worried about individual
freedom of an individual, qualified for the advantage of the assumption of blamelessness since
he isn't, on the date of his application for expectant safeguard, indicted for the offense in regard
of which he looks for safeguard. Despite the fact that the ability to discharge on expectant
safeguard can be depicted starting at an "uncommon" character this would not legitimize the
conclusion that the power must be practiced in outstanding cases as it were. It isn't fundamental
that the denounced must make out an "exceptional case" for the activity of the ability to allow
expectant bail. No straight coat equation can be endorsed for general application in instances of
expectant safeguard as each case must be considered alone merits and in its certainties and
conditions. Individual freedom being a valuable essential right ought to be shortened just when it
winds up basic as indicated by the unconventional certainties and conditions of the case.
Expectant Bail was acquainted in the Code with avert infringement of individual freedom of a
man. No individual can be denied of his own freedom and can be kept superfluously. The
research can be concluded in a manner to show that it is important for greater codification of
anticipatory bail provisions to the criminal procedure is especially required to be more
significant in implementation.

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PLAGIARISM REPORT :