Recently, the kerala high court granted anticipatory bail to film maker aisha sultana in the sedition case registered against her for a remark by saying praful khoda patel a “bioweapon” who is a Lakshadweep administrator during a debate on a Malayalam new channel about the ongoing political crisis in Lakshadweep. 

Introduction to bail

According to black’s law dictionary, the term bail is defined is defined as the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court. 

The law of bails has to dovetail two conflicting demands, namely, first is that the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person to have committed a crime and secondly, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. So this is all about bail.

Anticipatory bail

Now if we talk about anticipatory bail then it is somewhat different from the bail, so as come to know from the above discussion that the ordinary bail is the bail which is granted to a person who is under arrest. Whereas in anticipatory bail, a person is directed to be released on bail even before arrest made.

Code of criminal procedure, 1973

Section 438 lays down the law on anticipatory bail. So 438(1) of the provision reads: when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the high court or the session court for a direction under this section: and that court may be, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. The provision empowers only the session courts and high courts to grant anticipatory bail.

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit custody, remain in prison for some days and then apply for bail.

Related cases

In gurbaksh singh sibbia v. state of Punjab 1980, a five judge supreme court bench ruled that section 438(1) is to be interpreted in the light of article 21 of the constitution. it also observed, “ it may perhaps be right to describe the power as an extraordinary character. But this does not mean that the power must be exercised in exceptional cases only, because it is of an extraordinary character.  We will really be saying once too often that all discretion has to be exercised with care and circumstances depending on circumstances justifying its exercise.”

But in case state (CBI) v. anil Sharma 1997, the court further noted that the grant of anticipatory bails in economic offences would definitely hamper the investigation.

In P Chidambaram v. directorate of enforcement 2019, the supreme court said that anticipatory bail is not to be granted as a matter of rule and to be granted only when the court is convinced that exceptional circumstances exist to resort to the remedy. Extraordinary power that had to be used sparingly and in exceptional cases, more so in economic offences as they affect the economic fabric of the society.

No anticipatory bail after arrest

The court held in clear terms that provision of anticipatory bail is to grant bail before the arrest of the applicant. Once the applicant is arrested, he can apply for bail under section 437 or 439 of the CrPc  but not under section 438.


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