Anticipatory bail - a fundamental right or otherwise


Dear Members,

please take note of the recent ruling of the SC which throws some light over the right of anticipatory bail. it was also held that even if there's no FIR, we can move the application for anticipatory bail if easonable apprehensions exists.

Also, we must keep in mind that accusation of non bailable offence does not make aperson guilty as it is just an accusation which must be established by facts and circumstances.

in the recent case of Savitry Agarwal, the Supreme Court has cautioned trial courts and High Courts against imposing unnecessary constraints and conditions while granting anticipatory bail under Section 438 of the Criminal Procedure Code.

Over-generous infusion of constraints and conditions, which were not found in Section 438, could make the provision constitutionally vulnerable. For, the right of personal freedom, as enshrined in Article 21 of the Constitution, could not be made to depend on compliance with unreasonable restrictions, said a Bench consisting of Justices D.K. Jain and R.M. Lodha.

It reiterated the guidelines laid down by a Constitution Bench which the courts were required to keep in mind while dealing with an application for anticipatory bail.

Writing the judgment, Justice Jain said the discretion under Section 438 had to be exercised with due care and circumspection depending on circumstances justifying its exercise. The court must be satisfied that the applicant invoking this provision “has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds.”

The court, quoting the Constitution Bench, said, “The filing of the first information report is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.”


In the instant case, Savitri Agarwal and three other family members were aggrieved over the cancellation of anticipatory bail by the Nagpur Bench of the Bombay High Court, acting on applications from the State and a complainant challenging the trial court’s order granting them anticipatory bail in a dowry case.

Serious error

Allowing the appeals, the Bench said that on the touchstone of parameters laid down by this court, the High Court had committed a serious error in reversing the order passed by the trial court granting anticipatory bail to Savitri Agarwal and other appellants.

“Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted, which, in our opinion, were missing in the instant case”, the Bench said. It set aside the High Court order and restored the trial court’s order granting anticipatory bail.

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well the judgment is good no doubt.


however the principles enshrined therein are the same as being followed earlier, but this time they have been given more refined form.


but still AB can not be termed as fundamental is a dicretionary releif so all depends upon the facts and circumstances of the case.


it must be noticed that denial of concession of AB in a fit case does amount to violation of fundamental right, in my opinion.....Article 21



Yes Mr. Kiran, no doubt it can not be termed a fundamental right as such still its our legal right and which must be provided if  reasonable apprehensions  exits and the circumstances allow for such anticipatory bail to be granted. in such cases if the court applies its descretion in negativity that would amount to suppression of our constitutional rights which is not justified according to the Apex Court and in those circumstances we must be allowed for anticipitaory bail.

had it been our fundamental right, it would not hvae been scrappd from uttar pradesh amendment. still, take away of our right of AB in UP is not justified an uits unconstitutional (one SC judgment says it is Constitutional) and in a recent judgement of Apex Court, J. Katju had instructed the UP Govt to reinstate AB provisions, but snce the directions were not delivered in an appropiate case, the same ws held to be not binding on the UP Gvt.

if we wish to reinstate the AB prov. in UP again, we can file a petition in the SC and the bar shall definitely be scrappred by the SC this time being unconstitutional.


Law officer

Ab is nt fmt right bt its a discretionary power and its depends on fact of case

Mr Manish

Justice Katju has made observations that how the non availability of provisions of anticipatory bail are being misused. Hon'ble Justice has also sent copy of judgement to UP govt for complaince.

It is really heartening that people are being dragged to court for false cases file for personal enimity in UP and it is shocking to see the number of applications being filed in u/s482 in allahabad high court.

I am writing this since i have personally sufferred this position. and i can understand the pain




does a persondseclared P O in a sec 138 N I Act entitled to bail as a right?


does a persondseclared P O in a sec 138 N I Act entitled to bail as a right?




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