Context: A SC constitution bench recently has ruled that an anticipatory bail can continue till the end of the trial and cannot be limited to a fixed time period. 

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The judgment was passed in a reference made by a three-judge bench in the case of Sushila Aggarwal v. State of NCT of Delhi regarding the scope of Section 438 of the Code of Criminal Procedure (CrPC) which provides for grant of anticipatory bail.

What are the Observations made by the Court?

The apex Court opined that there is nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting relief in terms of time. Further, the court also observed that when Parliament is not in favour to curtail the rights of the citizens, it would be not appropriate for the SC to curtail powers granted to courts with regard to anticipatory bail.

The Court also said that the application for the anticipatory bail could be moved by a person even before filing of FIR. Further, the court should examine seriousness and gravity of the offence to impose any condition on the petitioner, if necessary, while granting anticipatory bail.

What is Anticipatory Bail?

The provision of anticipatory bail under Section 438 was introduced after the amendment in CrPC in 1973

Section 438 is basically a procedural provision which is concerned with personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.

Who all can apply for it?

Section 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail. Sub-section (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 Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

It is to be noted that the provision empowers only the Sessions Court and High Court to grant anticipatory bail.

What is the significance of the Anticipatory Bail?

The main reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.

Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that Section 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

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