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The Crucial Role Of Anticipatory Bail In Safeguarding Individual Liberties

Writer's picture: lead indialead india
2 days ago3 min read

An individual's fundamental right to live a life of dignity and personal independence is protected under Article 21 of the Indian Constitution. The right to request bail while detained by law enforcement is protected by this clause.


In order to prevent wrongful arrests and uphold the assumption of innocence, anticipatory bail was instituted in 1973 and is outlined in Section 438 of the Criminal Procedure Code (CrPC). This idea has its foundations in international law, most notably in the Universal Declaration of Human Rights of Article 11.

Anticipatory Bail: About

Pre-arrest bond for crimes for which bail is not required is mostly covered under Section 438. A person who has been placed under arrest may request permission to be released on bond from the Court of Session or the High Court. For the lower courts, anticipatory bail is an ultra vires power. 


The Criminal Procedure (Amendment) Act of 2005, Section 438, addresses the following elements that the court takes into account prior to granting anticipatory bail:

  • The accused's role and the seriousness of the crime: An extensive evaluation of the nature of the offense as well as the accused person's role in it is usually important before any arrest is done. This assessment helps in determining if providing anticipatory bail is appropriate as well as necessary.

  • Relevant and Past Criminal History: It is important to carefully review the past criminal history of the accused, especially any sentence for the non-bailable offenses. This information usually aids in assessing the probable danger that is associated with the release of the accused on anticipatory bail.

  • Potential for Evading from Justice: The court basically looks into the possibility that the victim will abscond in order to avoid attending the court. In order to guarantee the presence of the accused at the time of trial procedure, this element is mostly essential.

  • Possibility of Offense Recurrence: The possibility that the accused would commit the same as well as other crimes often is evaluated by the court prior to granting anticipatory bail. One of the main objectives is to prevent any criminal activity from happening a second time.

  • Intention for the Charge: The purpose of the charge is assessed basically in order to determine if the applicant is only being hurt or humiliated by the judicial processes. This guarantees that the issuance of anticipatory bail is not misused for nefarious intentions.

  • Function of the Charged: To ascertain the extent of the accused's involvement, the exact role they allegedly performed in the offense is scrutinized. This study helps to separate individuals who may have played a supporting role from those who were active participants.


Anticipatory Bail Safeguarding Individual Liberties

  • No individual should be deprived of his life or personal liberty unless in accordance with a process established by law, according to Article 21 of the Indian Constitution. 

  • Regardless of whether a person is an "accused," it protects their freedom and liberty against unwarranted detention and arrest, preserving the idea that a person is innocent until and unless proven guilty. A legislative right is anticipatory bail.


Case Laws: 

  • In Bhadresh Bipinbhai v State of Gujarat & anr (2015) case, the Supreme Court has decided that the notion or the concept of anticipatory bail, which relates to the idea of personal liberty, is found under the virtue of Article 21 of the Constitution of India and is included in accordance with Section 438 of the Criminal Procedure Code. In light of this, Section 438 of this particular Code needs to be read widely in accordance with Article 21 of the Constitution.

  • In the Sangeeta Bhatia v State of NCT of Delhi (2022) case, as per the decision of the Delhi High Court, anticipatory bail is a right that is statutory and is established under the virtue of Section 438 of the Code of Criminal Procedure and has its origins based in the roots of Article 21 of the Indian Constitution.


Anticipatory bail is an essential deterrent against unjustified arrests. Though recent legal changes have sparked discussions on the difficult balance between securing justice as well as maintaining individual liberties, the law tries to defend both the interests of justice in addition to the accused's rights. 


One can talk to a lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.


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