In the Indian law, there is a provision for the alleged persons to file an anticipatory bail that allows him or her to seek bail before arrest on the accusation if the person has not committed a non-bailable offence. This provision is mentioned for anticipatory bail is mentioned in the Criminal Procedure Code under Section 438. It is on the recommendation of the 41st Report of the Law Commission that the provision was incorporated into the Code. The anticipatory bail can only be issued by the High Court and the Sessions Court. 

An application of anticipatory bail can be given when the accused feels that there is a move to get him arrested due to enmity or because of the fear that a fake case has been charged against the person. The person can approach the court under Section 438 of the Criminal Procedure Code.


In a judgment by the Supreme Court, it was mentioned “rights which the citizens cherish deeply, are fundamental. It is not the restrictions that are fundamental.” The case was Sushila Aggarwal versus the State (NCT) of Delhi. The judgment was an answer to several questions arising out of different cases pending before several lower courts. 

The statement on the anticipatory bail was said by Justice S. Ravindra Bhat. The question was whether the period of Anticipatory Bail should be applied for a particular period. The judge also mentioned the saying of Joseph Story that personal security and private property rest entirely upon the wisdom, the stability and integrity of the court of justice

The court has given the example of the Indian freedom movement. It has also mentioned the arbitrary arrest, detention and also people’s demand for independence during that time. The five-judge bench was headed by Justice Arun Mishra. Justice Indira Banerjee, Justice Vineet Saran and Justice M.R. Shah were also members of the bench.


QUESTION OF LAW(Rights cherished by the people are fundamental):

According to the verdict, “the protection granted to a person under Section 438 of the CrPC should not invariably be limited to a fixed period and it should inure in favor of the accused without any restriction on time.” Here the courts can impose conditions but the time duration of the trial can continue till the end of the trial. 

The judge has given a reference to the Indian freedom struggle citing the importance of how the resistance against the Rowlatt Act, the Jalianwalabagh massacre and similar incidents have led to large scale protests from the part of the people as a result of which they were suppressed. The court also mentioned the different Law Commission reports, recommendations of several committees suggest control over the cases that include unwanted arrest.

The verdict also mentions that the Parliament also not considers it appropriate to restrict the power or discretion of the courts and granting pre-arrest or anticipatory bail, particularly regarding the duration or until charge sheet is filed or in grave crimes. Here, the courts may impose conditions while providing pre-arrest bails and also focused on the right of citizens. The rights of citizens are fundamental and hence have prime importance over restrictions. 

Justice Ravindra Bhat has said that the provision of bail before the arrest was included in the statute 46 years ago and it has stood till now. Also, the interpretation of the judiciary would not cater to the larger interest of the society as such an action would reduce to a small portion, limiting the objective of the provision that has stood for 46 years. 

CONCLUSION(Rights cherished by the people are fundamental):

The essence of the court’s objective to protect the rights of the individuals is well appreciated because those accused can face the problems of fake cases or cases of revenge against him or her. In such cases, the rights of such persons will have to be considered. But there are chances that these accused who are charged with more serious crimes like rape, violence, etc. may abscond during the period of their pre-arrest bail. There is a possibility of the accused threatening the complainant if the case is genuine. This aspect of it has the chance of questioning the safety of society. It must also be realized that the same crime may be committed. Thus, considering all these things, it must be subjected to double-check or the gravity of the case committed has to be considered. Hence, the Supreme Court said that the rights cherished by the people are fundamental.


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