6 foolproof ways to get anticipatory bail section 438 CrPC


First of all let us define and understand the bail.

Whats is a bail?

A bail is an order issued by a court of law, for the provisional release of the accused from judicial custody, in a criminal case pending before a court, while the judgment is yet to be pronounced.

We shall look into some more details before understanding the principals governing grant of bail and cancellation of bail.

The provisions as to bail and bonds are provided under CHAPTER XXXII of the Cr.P.C. Containing section 436 to 450. A brief of the relevant sections of this chapter is given as below.

436. In what cases bail to be taken.

436A. Maximum period for which an undertrial prisoner can be detained.

437. When bail may be taken in case of non-bailable offence.

437A. Bail to require accused to appear before next appellate Court.

438. Direction for grant of bail to person apprehending arrest.

439. Special powers of High Court or Court of Session regarding bail.

440. Amount of bond and reduction thereof.

441. Bond of accused and sureties.

441A. Declaration by sureties.

442. Discharge from custody.

443. Power to order sufficient bail when that first taken is insufficient.

444. Discharge of sureties.

445. Deposit instead of recognizance.

446. Procedure when bond has been forfeited.

446A. Cancellation of bond and bail bond.

447. Procedure in case of insolvency of death of surety or when a bond is forfeited.

448. Bond required from minor.

449. Appeal from orders under section 446.

450. Power to direct levy of amount due on certain recognizances.

We will confine our article to section 437, 438 and 439 and further discuss the principals governing grant of bail and cancellation of bail.

A bail, on the basis of its nature, is of three types primarily and they are as below:-

  1. regular bail section 437 of code of  criminal procedure, 1973
  2. interim bail
  3. anticipatory bail, section 438 of code of  criminal procedure, 1973

We will now provide the briefs on the grant of bail and its cancellation, governing principals.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.


Section 439 of the Cr.P.C is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of well- settled principles having regard to the facts and circumstances of each case.

The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner.

While granting the bail, the court has to keep in mind

  • the nature of accusations,
  • the nature of evidence in support thereof,
  • the severity of the punishment which conviction will entail, the character,
  • behaviour,
  • means and standing of the accused,
  • circumstances which are peculiar to the accused,
  • reasonable possibility of securing the presence of the accused at the trial,
  • Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

It is well-settled that the factors to be borne in mind while considering an application for bail are:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • nature and gravity of the accusation;
  • severity of the punishment in the event of conviction;
  • danger of the accused absconding or fleeing, if released on bail;
  • character, behaviour, means, position and standing of the accused;
  • likelihood of the offence being repeated;
  • reasonable apprehension of the witnesses being influenced; and
  • Danger, of course, of justice being thwarted by grant of bail.

In a recent pronouncement of the apex Court, it has been observed as that orders passed by the High Courts are cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that “the facts and the circumstances” have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court.

Such a situation continues despite various judgments of the apex Court wherein the Supreme Court has disapproved of such a practice. The Supreme Court observed as follows:-

Merely recording “having perused the record” and “on the facts and circumstances of the case” does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion.

For grant or denial of bail, the “nature of crime” has a huge relevancy. The key considerations which govern the grant of bail were elucidated in the various judgments including judgment of the apex Court in Ram Govind Upadhyay Vs. Sudarshan Singh, wherein it has been observed as under: –

Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) 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.

The parameters to be taken into consideration for grant of bail by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav And Another as under : –

The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) prima facie satisfaction of the court in support of the charge.”


The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.

A two-Judge Bench of the apex Court in Ramesh Bhavan Rathod held that the duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. Important portion of the judgment reads as below.

We disapprove of the observations of the High Court in a succession of orders in the present case recording that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 of Cr.P.C would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that counsel for the “respective parties do not press for further reasoned order”.

If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny.

Grant of bail under Section 439 of the Cr.P.C is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail – as in the case of any other discretion which is vested in a court as a judicial institution – is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.”

In the case of Ram Govind Upadhyay, the apex court observed that:-

Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society though may be considered but that by it cannot be a guiding factor in the matter of grant of bail and the same should and ought to always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

in Mahipal Vs. Rajesh Kumar Alias Polia And Another the apex court observed:-

The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case.

However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.”


The apex court at various occasions has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted).

In the case of Dolat Ram And Others Vs. State of Haryana the supreme court of India laid down the grounds for cancellation of bail which are :-

(i)     interference or attempt to interfere with the due course of administration of Justice

(ii)    evasion or attempt to evade the due course of justice

(iii) abuse of the concession granted to the accused in any manner

(iv) Possibility of accused absconding

(v) Likelihood of/actual misuse of bail

(vi) Likelihood of the accused tampering with the evidence or threatening witnesses.

It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. The Courts certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances.

Following are the illustrative circumstances where the bail can be cancelled:-

a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.

b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.

c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.

d) Where bail has been granted on untenable grounds.

e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.

f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.

g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.

In Neeru Yadav Vs. State of Uttar Pradesh And Another, the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two-Judge Bench of the supreme Court examined the precedents on the principles that guide grant of bail and observed as under :-

It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court

The supreme court held in the case of Mahipal that: –

Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.

A two-Judge Bench of the apex Court in Prakash Kadam And Others Vs. Ram Prasad Vishwanath Gupta And Another held that:-

In considering whether to cancel the bail, the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. if there are serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. In the opinion of the court, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of bail. that factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.

Conclusions:- in the light of herein above, it may be concluded that while considering the grant or refusal of bail by a court of law herein above referred principals governing grant of bail and cancellation of bail shall be sincerely adhered with.

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