Praveen Kumar Rai vs Cbi Thru. Superintendent Of Police Acb Lko.
- Court
- Allahabad High Court
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
- 2549 of 2026
Praveen Kumar Rai
.....Applicant(s)
Versus
Cbi Thru. Superintendent Of Police Acb Lko.
.....Opposite
Party(s)
Counsel for Applicant(s) : Mrs.Suniti Sachan, Prashant
Chaudhary, Vishnu Kumar Srivastava
Counsel for Opposite Party(s) : Aakash Prasad
Court No. - 13
A.F.R.
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Sri Vishnu Kumar Srivastava, the learned counsel appearing on
behalf of the applicant and Sri Aakash Prasad, the learned counsel for the
opposite party- C.B.I.
2. The instant application has been filed by the applicant seeking
anticipatory bail in F.I.R./RC No.RC0062025A0022 under Sections 120-
B, 420 IPC and Section 7 and 8 of the Prevention of Corruption Act,
1988 registered at Police Station- C.B.I./A.C.B., District- Lucknow.
3. The aforesaid case has been registered on the basis of an F.I.R. lodged
on 05.08.2025 alleging that a letter dated 07.01.2025 sent by the Deputy
Chief Vigilance Officer/Accounts from the office of General Manager
Vigilance, North Eastern Railway, Gorakhpur, along with the
investigation report of Vigilance, Railways dated 01.06.2023 regarding
irregularities in the recruitment process conducted by RRB Gorakhpur
was received in CBI/ACB, Lucknow with a request to register FIR in this
matter. The investigation revealed that the candidates who approached
RRB office were directed to meet Praveen Kumar Rao, the then
Chairman, RRB (the applicant), through staff members Vinay Kumar
Srivastava and Varun Raj Mishra and the applicant personally collected
their applications and mobile numbers. Subsequently, the candidates
received calls from unknown mobile numbers and they were asked to
contact via WhatsApp and were pressurized to pay money to expedite
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2
their empanelment.
4. In the affidavit filed in support of the affidavit it has been stated that
the applicant is innocent, he has been falsely implicated in the present
case and he has no criminal history.
5. The opposite party- CBI has filed a counter affidavit opposing the
anticipatory bail application. It has inter alia been stated in the counter
affidavit that the named co-accused persons, Vinay Kumar Srivastava and
Varun Raj Mishra, have stated that they used to collect money from the
prospective candidates under instructions of the applicant. It has further
been stated that a handwritten slip containing particulars of eight
candidates, which were prima facie suspected to be in the handwriting of
the applicant, was seized during search proceedings.
6. The counter affidavit alleges that the applicant did not join
investigation after providing specimen handwriting on 21.08.2026.
However in para 10 of the affidavit it has been stated that the charge-sheet
has already been submitted.
7. The learned counsel for the applicant has also submitted that the
investigation already stands concluded and a charge-sheet has been
submitted which fact has not been disputed by Sri Aakash Prasad as a
copy of the charge-sheet is available with him in a sealed cover. However,
the Court had not called for the charge sheet and it is not a part of the
record, therefore, the Court has not looked into it.
8. The learned counsel for the applicant has submitted that the applicant is
a public servant having no criminal history, the investigation already
stands concluded, the sanction for prosecution has not yet been granted,
the trial is yet to commence, numerous witnesses will have to be
examined before the trial and, therefore, there would be no possibility of
conclusion of trial in the near future. In these circumstances, no useful
purpose will be served by arresting the petitioner upon his appearance
before the trial court.
9. The learned counsel for the opposite party- CBI has opposed the
anticipatory application and he has placed reliance on the judgment of the
Honorable Supreme Court in the case of Devinder Kumar Bansal v.
(2025) 4 SCC 493, wherein the Hon'ble Supreme Court
State of Punjab
held that “ the principles governing grant of anticipatory bail are distinct
NABAIL No. 2549 of 2026
3
and different from the principles as regard grant of regular bail. The
considerations are different.”
10. The scope of discretion of the Sessions Court and the High Courts
while deciding applications seeking pre-arrest bail filed under Section 438
Cr.P.C. was considered in detail and decided by a Constitution Bench
consisting of five Hon’ble Judges of the Hon’ble Supreme Court in
: (1980) 2 SCC 565, wherein
Gurbaksh Singh Sibbia v. State of Punjab
the Constitution Bench was dealing with an appeal filed against a
judgment rendered by a Full Bench of Punjab and Haryana High Court
rejecting the appellants’ applications for bail summarizing, what
according to it is the true legal position, thus: -
“ (1) The power under Section 438, Criminal Procedure Code, is of
an extraordinary character and must be exercised sparingly in
exceptional cases only;
(2) Neither Section 438 nor any other provision of the Code
authorises the grant of blanket anticipatory bail for offences not yet
committed or with regard to accusations not so far levelled.
(3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit therein
and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the
petitioner must make out a special case for the exercise of the power
to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the
police custody under Section 167(2) can be made out by the
investigating agency or a reasonable claim to secure incriminating
material from information likely to be received from the offender
under Section 27 of the Evidence Act can be made out, the power
under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard
to offences punishable with death or imprisonment for life unless the
court at that very stage is satisfied that such a charge appears to be
false or groundless.
(7) The larger interest of the public and State demand that in serious
cases like economic offences involving blatant corruption at the
higher rungs of the executive and political power, the discretion
under Section 438 of the Code should not be exercised; and
(8) Mere general allegations of mala fides in the petition are
inadequate. The court must be satisfied on materials before it that the
allegations of mala fides are substantial and the accusation appears
to be false and groundless.”
The Constitution Bench allowed the appeal of Gurbaksh Singh Sibbia (
NABAIL No. 2549 of 2026
4
supra) and set aside the aforesaid principles laid down by the Full Bench
of Punjab and Haryana High Court by holding that: -
“ 12. We find ourselves unable to accept, in their totality, the
submissions of the learned Additional Solicitor General or the
constraints which the Full Bench of the High Court has engrafted on
the power conferred by Section 438. Clause (1) of Section 438 is
couched in terms, broad and unqualified. By any known canon of
construction, words of width and amplitude ought not generally to
be cut down so as to read into the language of the statute restraints
and conditions which the legislature itself did not think it proper or
necessary to impose. This is especially true when the statutory
provision which falls for consideration is designed to secure a
valuable right like the right to personal freedom and involves the
application of a presumption as salutary and deep grained in our
criminal jurisprudence as the presumption of innocence . Though
the right to apply for anticipatory bail was conferred for the first
time by Section 438, while enacting that provision the legislature was
not writing on a clean slate in the sense of taking an unprecedented
step, insofar as the right to apply for bail is concerned. It had before
it two cognate provisions of the Code: Section 437 which deals with
the power of courts other than the Court of Session and the High
Court to grant bail in non-bailable cases and Section 439 which
deals with the “special powers” of the High Court and the Court of
Session regarding bail. The whole of Section 437 is riddled and
hedged in by restrictions on the power of certain courts to grant bail.
That section reads thus:
437. When bail may be taken in case of non-bailable offence.—(1)
“
When any person accused of or suspected of the commission of any
non-bailable offence is arrested or detained without warrant by an
officer in charge of a police station or appears or is brought before
a court other than the High Court or Court of Session, he may be
released on bail, but he shall not be so released if there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life:
Provided that the court may direct that any person under the age of
sixteen years or any woman or any sick or infirm person accused of
such an offence be released on bail:
Provided further that the mere fact that an accused person may be
required for being identified by witnesses during investigation shall
not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he
shall comply which such directions as may be given by the court.
(2) If it appears to such officer or court at any stage of the
investigation, inquiry or trial, as the case may be, that there are not
reasonable grounds for believing that the accused has committed a
non-bailable offence, but that there are sufficient grounds for
NABAIL No. 2549 of 2026
5
further inquiry into his guilt, the accused shall, pending such
inquiry, be released on bail, or, at the discretion of such officer or
court, on the execution by him of a bond without sureties for his
appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of the Penal Code, 1860 or abetment of, or
conspiracy or attempt to commit, any such offence, is released on
bail under sub-section (1), the court may impose any condition
which the court considers necessary—
(a) in order to ensure that such person shall attend in accordance
with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence
similar to the offence of which he is accused or of the commission
of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a court releasing any person on bail under sub-
section (1) or sub-section (2), shall record in writing his or its
reasons for so doing.
(5) Any court which has released a person on bail under sub-
section (1) or sub-section (2), may, if it considers it necessary so to
do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a
period of sixty days from the first date fixed for taking evidence in
the case, such person shall, if he is in custody during the whole of
the said period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the
Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person
accused of a non-bailable offence and before judgment is delivered,
the court is of opinion that there are reasonable grounds for
believing that the accused is not guilty of any such offence, it shall
release the accused, if he is in custody, on the execution by him of a
bond without sureties for his appearance to hear judgment
delivered.”
Section 439(1)(a) incorporates the conditions mentioned in Section
437(3) if the offence in respect of which the bail is sought is of the
nature specified in that sub-section. Section 439 reads thus:
439. Special powers of High Court or Court of Session regarding
“
bail.— (1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified in sub-
section (3) of Section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub-section;
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6
(b) that any condition imposed by a Magistrate when releasing any
person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is
triable exclusively by the Court of Session or which, thought not so
triable, is punishable with imprisonment for life, give notice of the
application for bail to the Public Prosecutor unless it is, for
reasons to be recorded in writing, of opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and
commit him to custody.”
The provisions of Sections 437 and 439 furnished a convenient model
for the legislature to copy while enacting Section 438. If it has not
done so and has departed from a pattern which could easily be
adopted with the necessary modifications, it would be wrong to
refuse to give to the departure its full effect by assuming that it was
not intended to serve any particular or specific purpose. The
departure, in our opinion, was made advisedly and purposefully:
st
Advisedly, at least in part, because of the 41 Report of the Law
Commission which, while pointing out the necessity of introducing a
provision in the Code enabling the High Court and the Court of
Session to grant anticipatory bail, said in para 39.9 that it had
“considered carefully the question of laying down in the statute
certain conditions under which alone anticipatory bail could be
granted” but had come to the conclusion that the question of
granting such bail should be left “to the discretion of the court” and
ought not to be fettered by the statutory provision itself, since the
discretion was being conferred upon superior courts which were
expected to exercise it judicially. The legislature conferred a wide
discretion on the High Court and the Court of Session to grant
anticipatory bail because it evidently felt, firstly, that it would be
difficult to enumerate the conditions under which anticipatory bail
should or should not be granted and secondly, because the intention
was to allow the higher courts in the echelon a somewhat free hand
in the grant of relief in the nature of anticipatory bail. That is why,
departing from the terms of Sections 437 and 439, Section 438(1)
uses the language that the High Court or the Court of Session
“may, if it thinks fit” direct that the applicant be released on bail.
Sub-section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a wide
discretionary power to grant anticipatory bail. It provides that the
High Court or the Court of Session, while issuing a direction for
the grant of anticipatory bail, “may include such conditions in such
directions in the light of the facts of the particular case, as it may
think fit”, including the conditions which are set out in clauses (i)
The proof of legislative intent can best be
to (iv) of sub-section (2).
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found in the language which the legislature uses. Ambiguities can
undoubtedly be resolved by resort to extraneous aids but words, as
wide and explicit as have been used in Section 438, must be given
their full effect, especially when to refuse to do so will result in undue
impairment of the freedom of the individual and the presumption of
innocence. It has to be borne in mind that anticipatory bail is
sought when there is a mere apprehension of arrest on the
accusation that the applicant has committed a non- bailable
offence. A person who has yet to lose his freedom by being arrested
asks for freedom in the event of arrest. That is the stage at which it
is imperative to protect his freedom, insofar as one may, and to give
full play to the presumption that he is innocent . In fact, the stage at
which anticipatory bail if generally sought brings about its striking
dissimilarity with the situation in which a person who is arrested for
the commission of a non-bailable offence asks for bail. In the latter
situation, adequate data is available to the court, or can be called for
by it, in the light of which it can grant or refuse relief and while
granting it, modify it by the imposition of all or any of the conditions
mentioned in Section 437.
13. This is not to say that anticipatory bail, if granted, must be
granted without the imposition of any conditions. That will be plainly
contrary to the very terms of Section 438. Though sub-section (1) of
that section says that the court “may, if it thinks fit” issue the
necessary direction for bail, sub-section (2) confers on the court the
power to include such conditions in the direction as it may think fit in
the light of the facts of the particular case, including the conditions
mentioned in clauses (i) to (iv) of that sub-section. The controversy
therefore is not whether the court has the power to impose conditions
while granting anticipatory bail. It clearly and expressly has that
power. The true question is whether by a process of construction, the
amplitude of judicial discretion which is given to the High Court and
the Court of Session, to impose such conditions as they may think fit
while granting anticipatory bail, should be cut down by reading into
the statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned Additional
Solicitor General. Our answer, clearly and emphatically, is in the
negative. The High Court and the Court of Session to whom the
application for anticipatory bail is made ought to be left free in the
exercise of their judicial discretion to grant bail if they consider it
fit so to do on the particular facts and circumstances of the case
and on such conditions as the case may warrant. Similarly, they
must be left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in Section
437 or which are generally considered to be relevant under Section
.
439 of the Code
14. Generalisations on matters which rest on discretion and the
attempt to discover formulae of universal application when facts
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are bound to differ from case to case frustrate the very purpose of
conferring discretion. No two cases are alike on facts and
therefore, courts have to be allowed a little free play in the joints if
the conferment of discretionary power is to be meaningful. There is
no risk involved in entrusting a wide discretion to the Court of
Session and the High Court in granting anticipatory bail because,
firstly, these are higher courts manned by experienced persons,
secondly, their orders are not final but are open to appellate or
revisional scrutiny and above all because, discretion has always to
be exercised by courts judicially and not according to whim, caprice
or fancy. On the other hand, there is a risk in foreclosing
categories of cases in which anticipatory bail may be allowed
because life throws up unforeseen possibilities and offers new
challenges. Judicial discretion has to be free enough to be able to
take these possibilities in its stride and to meet these challenges .
While dealing with the necessity for preserving judicial discretion
unhampered by rules of general application Earl Loreburn, L.C. said
in Hyman v. Rose [1912 AC 623]:
I desire in the first instance to point out that the discretion given
“
by the section is very wide. . . . Now it seems to me that when the
Act is so expressed to provide a wide discretion, ... it is not
advisable to lay down any rigid rules for guiding that discretion. I
do not doubt that the rules enunciated by the Master of the Rolls in
the present case are useful maxims in general, and that in general
they reflect the point of view from which judges would regard an
application for relief. But I think it ought to be distinctly
understood that there may be cases in which any or all of them may
be disregarded. If it were otherwise, the free discretion given by the
statute would be fettered by limitations which have nowhere been
enacted. It is one thing to decide what is the true meaning of the
language contained in an Act of Parliament. It is quite a different
thing to place conditions upon a free discretion entrusted by statute
to the court where the conditions are not based upon statutory
enactment at all. It is not safe, I think, to say that the court must
and will always insist upon certain things when the Act does not
require them, and the facts of some unforeseen case may make the
court wish it had kept a free hand.”
15. Judges have to decide cases as they come before them, mindful
of the need to keep passions and prejudices out of their decisions.
And it will be strange if, by employing judicial artifices and
techniques, we cut down the discretion so wisely conferred upon the
courts, by devising a formula which will confine the power to grant
anticipatory bail within a strait-jacket. While laying down cast-iron
rules in a matter like granting anticipatory bail, as the High Court
has done, it is apt to be overlooked that even judges can have but an
imperfect awareness of the needs of new situations. Life is never
static and every situation has to be assessed in the context of
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emerging concerns as and when it arises. Therefore, even if we
were to frame a ‘Code for the grant of anticipatory bail’, which
really is the business of the legislature, it can at best furnish broad
guide-lines and cannot compel blind adherence. In which case to
grant bail and in which to refuse it is, in the very nature of things, a
matter of discretion. But apart from the fact that the question is
inherently of a kind which calls for the use of discretion from case
to case, the legislature has, in terms express, relegated the decision
of that question to the discretion of the court, by providing that it
may grant bail “if it thinks fit”. The concern of the courts generally
is to preserve their discretion without meaning to abuse it. It will be
strange if we exhibit concern to stultify the discretion conferred
.
upon the courts by law
16. A close look at some of the rules in the eight-point code
formulated by the High Court will show how difficult it is to apply
them in practice. The seventh proposition says:
“ The larger interest of the public and State demand that in serious
cases like economic offences involving blatant corruption at the
higher rungs of the executive and political power, the discretion
under Section 438 of the Code should not be exercised.”
17. How can the court, even if it had a third eye, assess the
blatantness of corruption at the stage of anticipatory bail? And will
it be correct to say that blatantness of the accusation will suffice for
rejecting bail, if the applicant's conduct is painted in colours too
lurid to be true? The eighth proposition rule framed by the High
Court says:
“ Mere general allegations of mala fides in the petition are
inadequate. The court must be satisfied on materials before it that the
allegations of mala fides are substantial and the accusation appears
to be false and groundless.”
Does this rule mean, and that is the argument of the learned
Additional Solicitor General, that anticipatory bail cannot be
granted unless it is alleged (and naturally, also shown, because mere
allegation is never enough) that the proposed accusations are mala
fide? It is understandable that if mala fides are shown, anticipatory
bail should be granted in the generality of cases. But it is not easy to
appreciate why an application for anticipatory bail must be rejected
unless the accusation is shown to be mala fide. This, truly, is the risk
involved in framing rules by judicial construction. Discretion,
therefore, ought to be permitted to remain in the domain of
discretion, to be exercised objectively and open to correction by the
higher courts. The safety of discretionary power lies in this twin
protection which provides a safeguard against its abuse.
*
21. The High Court says in its fourth proposition that in addition to
the limitations mentioned in Section 437, the petitioner must make
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out a “special case” for the exercise of the power to grant
anticipatory bail. This, virtually, reduces the salutary power
conferred by Section 438 to a dead letter. In its anxiety, otherwise
just, to show that the power conferred by Section 438 is not
“unguided or uncanalised”, the High Court has subjected that power
to a restraint which will have the effect of making the power utterly
unguided. To say that the applicant must make out a “special case”
for the exercise of the power to grant anticipatory bail is really to say
nothing. The applicant has undoubtedly to make out a case for the
grant of anticipatory bail. But one cannot go further and say that
he must make out a “special case”. We do not see why the
provisions of Section 438 should be suspected as containing
something volatile or incendiary, which needs to be handled with
the greatest care and caution imaginable. A wise exercise of
judicial power inevitably takes care of the evil consequences which
are likely to flow out of its intemperate use. Every kind of judicial
discretion, whatever may be the nature of the matter in regard to
which it is required to be exercised, has to be used with due care
and caution. In fact, an awareness of the context in which the
discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hallmark of a prudent
exercise of judicial discretion. One ought not to make a bugbear of
.
the power to grant anticipatory bail
*
31. In regard to anticipatory bail, if the proposed accusation appears
to stem not from motives of furthering the ends of justice but from
some ulterior motive, the object being to injure and humiliate the
applicant by having him arrested, a direction for the release of the
applicant on bail in the event of his arrest would generally be made.
On the other hand, if it appears likely, considering the antecedents of
the applicant, that taking advantage of the order of anticipatory bail
he will flee from justice, such an order would not be made. But the
converse of these propositions is not necessarily true. That is to say,
it cannot be laid down as an inexorable rule that anticipatory bail
cannot be granted unless the proposed accusation appears to be
actuated by mala fides; and, equally, that anticipatory bail must be
granted if there is no fear that the applicant will abscond. There are
several other considerations, too numerous to enumerate, the
combined effect of which must weigh with the court while granting
or rejecting anticipatory bail. The nature and seriousness of the
proposed charges, the context of the events likely to lead to the
making of the charges, a reasonable possibility of the applicant's
presence not being secured at the trial, a reasonable apprehension
that witnesses will be tampered with and “the larger interests of the
public or the State” are some of the considerations which the court
has to keep in mind while deciding an application for anticipatory
bail. The relevance of these considerations was pointed out in State
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v. Captain Jagjit Singh [AIR 1962 SC 253], which, though, was a
case under the old Section 498 which corresponds to the present
Section 439 of the Code.
It is of paramount consideration to
remember that the freedom of the individual is as necessary for the
survival of the society as it is for the egoistic purposes of the
individual. A person seeking anticipatory bail is still a free man
entitled to the presumption of innocence. He is willing to submit to
restraints on his freedom, by the acceptance of conditions which
the court may think fit to impose, in consideration of the assurance
that if arrested, he shall be enlarged on bail.”
(emphasis added)
11. In Sushila Aggarwal v. State (NCT of Delhi) : (2020) 5 SCC 1, a
Constitution Bench consisting of five Hon’ble Judges of the Hon’ble
Supreme Court held that: -
“ 7.1. At the outset, it is required to be noted that as such the
expression “anticipatory bail” has not been defined in the Code. As
observed by this Court in Balchand Jain [Balchand Jain v. State of
M.P., (1976) 4 SCC 572], “anticipatory bail” means “bail in
anticipation of arrest”. As held by this Court, the expression
“anticipatory bail” is a misnomer inasmuch as it is not as if bail is
presently granted by the court in anticipation of arrest. An
application for “anticipatory bail” in anticipation of arrest could be
moved by the accused at a stage before an FIR is filed or at a stage
when FIR is registered but the charge-sheet has not been filed and
the investigation is in progress or at a stage after the investigation is
concluded. Power to grant “anticipatory bail” under Section 438
CrPC vests only with the Court of Session or the High Court.
Therefore, ultimately it is for the court concerned to consider the
application for “anticipatory bail” and while granting the
“anticipatory bail” it is ultimately for the court concerned to impose
conditions including the limited period of “anticipatory bail”,
depends upon the stages at which the application for anticipatory
bail is moved. A person in whose favour a pre-arrest bail order is
made under Section 438 CrPC has to be arrested. However, once
there is an order of pre-arrest bail/anticipatory bail, as and when
he is arrested he has to be released on bail. Otherwise, there is no
distinction or difference between the pre-arrest bail order under
Section 438 and the bail order under Sections 437 and 439 CrPC.
The only difference between the pre-arrest bail order under Section
438 and the bail order under Sections 437 and 439 is the stages at
which the bail order is passed. The bail order under Section 438
CrPC is prior to his arrest and in anticipation of his arrest and the
order of bail under Sections 437 and 439 is after a person is
arrested. A bare reading of Section 438 CrPC shows that there is
nothing in the language of the Section which goes to show that the
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pre-arrest bail granted under Section 438 has to be time-bound. The
position is the same as in Section 437 and Section 439 CrPC.
*
Section 438 CrPC provides for the issuance of directions for the
47.
grant of bail to a person apprehending arrest. The Criminal
Procedure Code, 1973 replaced the old Code of 1898. The old Code
did not provide for any corresponding provision to Section 438 of the
Code of 1973. Under the old Code, there was a sharp difference of
opinion amongst the various High Courts on the question as to
whether courts had the inherent power to pass an order of bail in
anticipation of arrest. The predominant position was that courts did
not have such a power. Subsequently, the need for various
amendments to make the Code more comprehensive resulted in the
enactment of the Code of Criminal Procedure in 1973.
Interestingly,
Section 438 does not expressly use the term “anticipatory bail”; its
language instead empowers the court concerned to issue directions
for grant of bail.
48. The Law Commission of India, in its 41st Report of 1969, noted
that the necessity for granting anticipatory bail arises mainly due to
influential persons attempting to implicate their rivals in false cases,
or disgracing them by getting them detained in jail. The Report
further noted that 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
to be no justification to require him first to submit to custody, remain
in prison for some days and then apply for bail. The Report
recommended that a provision be included for the direction to grant
bail in such cases, and that this power vests in the High Courts and
Courts of Session only. The Report, however, did not include the
conditions for grant of anticipatory bail in the suggested language
for the provision. Certain conditions that courts may include were,
however included in the provision that was enacted as Section 438
CrPC, 1973.
49. The term “anticipatory bail” finds no place in CrPC itself but
was used by the Law Commission of India in its 41st Report. The
term was used to convey that it was an application for bail in
anticipation of arrest i.e. before the arrest itself is made. Grant of
bail, according to Wharton's Law Lexicon, and as noticed in
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, means
to “set at liberty a person arrested or imprisoned, on security being
taken for his appearance”. Sibbia (supra) , observed thus:
“ 7. …
The distinction between an ordinary order of bail and an
order of anticipatory bail is that whereas the former is granted after
arrest and therefore means release from the custody of the police,
the latter is granted in anticipation of arrest and is therefore
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effective at the very moment of arrest . Police custody is an
inevitable concomitant of arrest for non-bailable offences. An order
of anticipatory bail, constitutes, so to say, an insurance against
police custody following upon arrest for offence or offences in
respect of which the order is issued. In other words, unlike a post-
arrest order of bail, it is a pre-arrest legal process which directs that
if the person in whose favour it is issued is thereafter arrested on the
accusation in respect of which the direction is issued, he shall be
released on bail. Section 46(1) of the Criminal Procedure Code
which deals with how arrests are to be made, provides that in making
the arrest, the police officer or other person making the arrest ‘shall
actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action’. A
direction under Section 438 is intended to confer conditional
immunity from this “touch” or confinement.”
12. In : (2022) 10 SCC 51, the Hon’ble
Satender Kumar Antil v. CBI
Supreme Court elaborated upon the considerations for bail in economic
offences and whether economic offences should be treated as a separate
class of offences. In its judgment, the Hon’ble Apex Court held that: -
“ 90. What is left for us now to discuss are the economic offences. The
question for consideration is whether it should be treated as a class
of its own or otherwise. This issue has already been dealt with by this
Court in P. Chidambaram v. Directorate of Enforcement (2020) 13
SCC 791, after taking note of the earlier decisions governing the
field. The gravity of the offence, the object of the Special Act, and the
attending circumstances are a few of the factors to be taken note of,
along with the period of sentence. After all, an economic offence
cannot be classified as such, as it may involve various activities and
may differ from one case to another. Therefore, it is not advisable
on the part of the court to categorise all the offences into one group
and deny bail on that basis . Suffice it to state that law, as laid down
in the following judgments, will govern the field:
Precedents
91. (2020) 13 SCC
P. Chidambaram v. Directorate of Enforcement
791:
“ 23. Thus, from cumulative perusal of the judgments cited on either
side including the one rendered by the Constitution Bench in
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 of this
Court, it could be deduced that the basic jurisprudence relating to
bail remains the same inasmuch as the grant of bail is the rule and
refusal is the exception so as to ensure that the accused has the
opportunity of securing fair trial. However, while considering the
same the gravity of the offence is an aspect which is required to be
kept in view by the Court. The gravity for the said purpose will have
NABAIL No. 2549 of 2026
14
to be gathered from the facts and circumstances arising in each case.
Keeping in view the consequences that would befall on the society in
cases of financial irregularities, it has been held that even economic
offences would fall under the category of “grave offence” and in
such circumstance while considering the application for bail in such
matters, the Court will have to deal with the same, being sensitive to
the nature of allegation made against the accused. One of the
circumstances to consider the gravity of the offence is also the term
of sentence that is prescribed for the offence the accused is alleged
to have committed. Such consideration with regard to the gravity of
offence is a factor which is in addition to the triple test or the tripod
test that would be normally applied. In that regard what is also to
be kept in perspective is that even if the allegation is one of grave
economic offence, it is not a rule that bail should be denied in every
case since there is no such bar created in the relevant enactment
passed by the legislature nor does the bail jurisprudence provide so.
Therefore, the underlining conclusion is that irrespective of the
nature and gravity of charge, the precedent of another case alone
will not be the basis for either grant or refusal of bail though it may
have a bearing on principle. But ultimately the consideration will
have to be on case-to-case basis on the facts involved therein and
securing the presence of the accused to stand trial .”
92. Sanjay Chandra v. CBI (2012) 1 SCC 40:
“ 39. Coming back to the facts of the present case, both the courts
have refused the request for grant of bail on two grounds: the
primary ground is that the offence alleged against the accused
persons is very serious involving deep-rooted planning in which,
huge financial loss is caused to the State exchequer; the secondary
ground is that of the possibility of the accused persons tampering
with the witnesses. In the present case, the charge is that of cheating
and dishonestly inducing delivery of property and forgery for the
purpose of cheating using as genuine a forged document. The
punishment for the offence is imprisonment for a term which may
extend to seven years. It is, no doubt, true that the nature of the
charge may be relevant, but at the same time, the punishment to
which the party may be liable, if convicted, also bears upon the
issue. Therefore, in determining whether to grant bail, both the
seriousness of the charge and the severity of the punishment should
be taken into consideration .
40. The grant or refusal to grant bail lies within the discretion of the
court. The grant or denial is regulated, to a large extent, by the facts
and circumstances of each particular case. But at the same time,
right to bail is not to be denied merely because of the sentiments of
the community against the accused. The primary purposes of bail
in a criminal case are to relieve the accused of imprisonment, to
relieve the State of the burden of keeping him, pending the trial,
NABAIL No. 2549 of 2026
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and at the same time, to keep the accused constructively in the
custody of the court, whether before or after conviction, to assure
that he will submit to the jurisdiction of the court and be in
attendance thereon whenever his presence is required .
*
46. We are conscious of the fact that the accused are charged with
economic offences of huge magnitude. We are also conscious of the
fact that the offences alleged, if proved, may jeopardise the
economy of the country. At the same time, we cannot lose sight of
the fact that the investigating agency has already completed
investigation and the charge-sheet is already filed before the
Special Judge, CBI, New Delhi. Therefore, their presence in the
We are of
custody may not be necessary for further investigation.
the view that the appellants are entitled to the grant of bail pending
trial on stringent conditions in order to ally the apprehension
expressed by CBI.”
Role of the court
93.
The rate of conviction in criminal cases in India is abysmally
low. It appears to us that this factor weighs on the mind of the
Court while deciding the bail applications in a negative sense.
Courts tend to think that the possibility of a conviction being nearer
to rarity, bail applications will have to be decided strictly, contrary
to legal principles. We cannot mix up consideration of a bail
application, which is not punitive in nature with that of a possible
adjudication by way of trial. On the contrary, an ultimate acquittal
with continued custody would be a case of grave injustice .
94. Criminal courts in general with the trial court in particular are
the guardian angels of liberty. Liberty, as embedded in the Code, has
to be preserved, protected, and enforced by the criminal courts. Any
conscious failure by the criminal courts would constitute an affront
to liberty. It is the pious duty of the criminal court to zealously guard
and keep a consistent vision in safeguarding the constitutional values
and ethos. A criminal court must uphold the constitutional thrust with
responsibility mandated on them by acting akin to a high priest.
95. This Court in
Arnab Manoranjan Goswami v. State of
(2021) 2 SCC 427 has observed that:
Maharashtra
67.
“ Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted legislation. As
such, the citizen is subject to the edicts of criminal law and
procedure. Section 482 recognises the inherent power of the High
Court to make such orders as are necessary to give effect to the
provisions of CrPC ‘or prevent abuse of the process of any court or
otherwise to secure the ends of justice’. Decisions of this Court
require the High Courts, in exercising the jurisdiction entrusted to
NABAIL No. 2549 of 2026
16
them under Section 482, to act with circumspection. In emphasising
that the High Court must exercise this power with a sense of
restraint, the decisions of this Court are founded on the basic
principle that the due enforcement of criminal law should not be
obstructed by the accused taking recourse to artifices and strategies.
The public interest in ensuring the due investigation of crime is
protected by ensuring that the inherent power of the High Court is
exercised with caution. That indeed is one—and a significant—end of
the spectrum. The other end of the spectrum is equally important: the
recognition by Section 482 of the power inhering in the High Court
to prevent the abuse of process or to secure the ends of justice is a
valuable safeguard for protecting liberty. The Code of Criminal
Procedure, 1898 was enacted by a legislature which was not subject
to constitutional rights and limitations; yet it recognised the
inherent power in Section 561-A. Post-Independence, the
recognition by Parliament [Section 482CrPC, 1973] of the inherent
power of the High Court must be construed as an aid to preserve
the constitutional value of liberty. The writ of liberty runs through
the fabric of the Constitution. The need to ensure the fair
investigation of crime is undoubtedly important in itself, because it
protects at one level the rights of the victim and, at a more
fundamental level, the societal interest in ensuring that crime is
investigated and dealt with in accordance with law. On the other
hand, the misuse of the criminal law is a matter of which the High
Court and the lower courts in this country must be alive. In the
present case, the High Court could not but have been cognizant of
the specific ground which was raised before it by the appellant that
he was being made a target as a part of a series of occurrences
which have been taking place since April 2020. The specific case of
the appellant is that he has been targeted because his opinions on his
television channel are unpalatable to authority. Whether the
appellant has established a case for quashing the FIR is something
on which the High Court will take a final view when the proceedings
are listed before it but we are clearly of the view that in failing to
make even a prima facie evaluation of the FIR, the High Court
abdicated its constitutional duty and function as a protector of
liberty. Courts must be alive to the need to safeguard the public
interest in ensuring that the due enforcement of criminal law is not
obstructed. The fair investigation of crime is an aid to it. Equally it
is the duty of courts across the spectrum—the district judiciary, the
High Courts and the Supreme Court—to ensure that the criminal
law does not become a weapon for the selective harassment of
citizens. Courts should be alive to both ends of the spectrum—the
need to ensure the proper enforcement of criminal law on the one
hand and the need, on the other, of ensuring that the law does not
become a ruse for targeted harassment. Liberty across human eras
is as tenuous as tenuous can be. Liberty survives by the vigilance of
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her citizens, on the cacophony of the media and in the dusty
corridors of courts alive to the rule of (and not by) law. Yet, much
too often, liberty is a casualty when one of these components is
found wanting.”
(emphasis added)
13. In Musheer Alam v. State of U.P. ; 2025 SCC OnLine SC 116 the
Hon’ble Supreme Court allowed the appeal challenging an order passed
by the Allahabad High Court, whereby an application seeking anticipatory
bail in a case involving offences punishable under Section 13(1)(b) read
with 13(2) of the Prevention of Corruption Act was rejected. The Hon'ble
Supreme Court took note of the fact that the investigation was over and a
charge-sheet had already been filed in the Court. While investigation was
in progress, the investigating officer did not deem it fit to arrest the
petitioner accused. The Hon'ble Supreme Court also took note on the
submission that there is a practice in the State of U.P. that arrest is
effected after the charge-sheet is filed and the court takes cognizance of
the charge-sheet. The Hon'ble Supreme Court, although reportedly
refrained from making any comment regarding this practice, yet it said
that it makes no sense. The Hon'ble Supreme Court further held that once
the investigation is over and charge-sheet has been filed, then the accused
should be asked to appear before the court concerned and should furnish
bail to the satisfaction of the trial court. The Hon'ble Supreme Court
directed the petitioner to appear before the trial court and furnish bail
bonds to the satisfaction of the court concerned.
14. In light of the aforesaid judgments, the law stands well settled that
although grant of bail in economic offences requires a sensitive approach
yet there must be no absolute inhibition in granting bail to an accused
only for the reason that he is accused of an economic offence.
15. Having considered the aforesaid facts and circumstances of the case
and keeping in view the fact that the applicant has been implicated on the
basis of statement of co-accused persons and nothing has been recovered
from him; that the investigation stands concluded and the applicant was
not arrested during investigation; that the applicant is a public servant
having no criminal history and there is no reasonable apprehension of his
evading the process of law; that the maximum sentence that can be
imposed upon the applicant is imprisonment upto 7 years; that the
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18
applicant has no criminal history, the sanction for prosecution has not
been granted till date and the trial has yet to commence and it appears that
completion of the trial would take substantial time and there would be no
possibility of conclusion of it in the near future, I am of the view that the
aforesaid facts are sufficient for making out a case for granting
anticipatory bail to the applicant.
16. In view of the above, the anticipatory bail application of the applicant
is allowed . In the event of arrest/ appearance of applicant before the
learned Trial Court in the aforesaid case crime, he shall be released on
bail on furnishing a personal bond and two solvent sureties, each in the
like amount, to the satisfaction of S.H.O./Court concerned on the
following conditions and subject to any other conditions that may be fixed
by the Trial Court :
(i) that the applicant shall make himself available for interrogation by a
police officer as and when required;
(ii) that the applicant shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police
officer or tamper with the evidence;
(iii) that the applicant shall not leave India without the previous
permission of the court.
(iv) that the applicant shall appear before the trial court on each date
fixed, unless personal presence is exempted; and
(v) that the applicant shall not pressurize/ intimidate the prosecution
witness.
(Subhash Vidyarthi,J.)
October 28, 2026
-Amit K-
Digitally signed by :-
AMIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench