“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which
insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”
– Justice V. R. Krishna Iyer in Gudikanti Narasimhulu vs. Public Prosecutor (1978) 1 SCC 240
In Shamshu Jama @ Shamsul Zama @ S. Zama vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices Dipankar Datta and Sheel Nagu passed a 6-page long order dated November 5, 2026, wherein, it concluded:"8. Taking an overall view of the matter but without expressing any opinion either way on the cause of death, we are of the considered opinion that the appellant’s detention for custodial interrogation is not necessary and that he may be admitted to an order for grant of bail in anticipation of arrest. 9. We, accordingly, set aside the judgment and order impugned in this appeal. "The Court set aside the 3-page long order dated July 9, 2026 by Justice Rajesh Kumar Verma of Patna High Court.
Supreme Court's order recorded that it appeared from counter affidavit filed by the respondent-State.that although the appellant figured as an accused in FIR No. 322/2025, there was a previous FIR, viz. FIR No.313/2025, wherein the victim figured as an accused. It is, therefore, clear that cross cases were registered. The postmortem report records that death of the victim was due to “lung disease”. Insofar as the injury on the victim was concerned, the report concluded that there appeared to be an injury on the long bone on his right arm.
It observed:"13. We clarify that the observations made in this order and grant of bail to the appellant in anticipation Criminal Appeal No.5261 OF 2026 3 of arrest will not be treated as findings on the merits of the case. 14. The appeal is, accordingly, allowed on the aforesaid terms."
Earlier, the petitioner had approached the High Court apprehending his arrest in connection with Sakra P.S. Case No. 322 of 2025, F.I.R. dated June 20, 2025 for the offences punishable under Sections 126(2),115,118,117,109,3(5) of the BNS, 2023 later on Section 103(1) of BNS was added but the police has found the case true under Sections 329(2),191(2)(3), 126(2),115(2),118(1), 117(1), 109(1), 352,351(2) of BNS. According to prosecution case, all the accused persons including this petitioner over a land dispute brutally assaulted the informant and his daughter and took away cash and gold chain from his house.
The counsel for the petitioner had submitted before the High Court that the petitioner had clean antecedent and was falsely implicated in the case. From the FIR it was apparent that the incident of assault on Md. Sayeed Akhta rtook place due to partition dispute. The date of occurrence as alleged in the FIR is June 14, 2025 but the FIR was instituted on June 20, 2025 after delay of six days afterthought only to falsely implicate the petitioner. The date of occurrence as alleged in FIR is June 14, 2025 and Md. Sayeed Akhtar had died on July 4, 2025. The injury report of the injured person/deceased suggested that he had received the injury on both shoulders. The counsel for the informant and A.P.P. for the State, vehemently opposed the prayer for anticipatory bail of the petitioner and submitted that the petitioner had perpetrated the crime in question and the deceased died after twenty days of the occurrence from a bare perusal of the postmortem report of the deceased it appeared that the opinion regarding cause of death was being kept reserved pending the report. Time elapsed since death was within 2-03 days from the time of postmortem examination.
Justice Verma had concluded: "6. Considering the aforesaid facts, this is not a fit case for grant of anticipatory bail to the petitioner in connection with Sakra P.S. Case No. 322 of 2025 pending in the court of learned Additional Sessions Judge-2nd Muzaffarpur." Supreme Court has reversed the order by Justce Verma.
Advocate Dr. Gopal Krishna observed: "In a case where the appellant’s detention for custodial interrogation is not necessary, it is reasonable to grant anticipatory bail. The provision of anticipatory bail is a legal mechanism for the protection of individual liberty. It allows a person to seek pre-arrest bail in anticipation of being arrested for a non-bailable offence. The provision recognizes that arrest may be misused as an instrument of oppression or harassment. This provision is provided under Section 438 of the Code of Criminal Procedure, 1973. With the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, anticipatory bail now finds its statutory basis under Section 482 of the BNSS. The 41st Report of the Law Commission of India (1969) had recommended the inclusion of a provision empowering courts to grant pre-arrest bail in order to prevent abuse of the arrest process. The basic framework of BNSS, 2023 for anticipatory bail under Section 482 empowers the Court of Session or the High Court to issue a direction for release in the event of arrest. The language “if it thinks fit” has been retained, but without further codified criteria. Unlike CrPC, BNSS does not expressly enumerate the considerations for granting anticipatory bail. This increases judicial discretion and introduces the risk of inconsistent or arbitrary decision-making. Dr. Krishna pointed out that under the BNSS, there is a express bar on grant of anticipatory bail in specific sexual offences. Section 482(4) BNSS (Section 438(4) CrPC) imposes a statutory prohibition against granting anticipatory bail in cases of rape on a woman under 16 years of age (Section 65 (1), BNS, 2023- Section 376 (3) IPC) and gang rape on a woman under 18 years of age (Section 70(2), BNS, 2023).
Section 438 of Cr.PC had vested the Court of Session and the High Court with concurrent jurisdiction to issue such a direction for non-bailable offences. Section 438 CrPC permitted a person to apply for anticipatory bail if there existed a reasonable apprehension of arrest for a non-bailable offence. The Section provided that:“...the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.” The Courts were required to consider relevant factors including the nature and gravity of the accusation, antecedents of the applicant, possibility of fleeing from justice, and the probability of tampering with evidence or threatening witnesses.
In Balchand Jain vs. State of M.P., 1977 SCR (2) 52, Justice P.N. Bhagwati described anticipatory bail as an “extraordinary remedy” to be granted in exceptional circumstances, where: “...a person might be falsely implicated, or a frivolous case might be launched against him...”
The Supreme Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40, reiterated the principle that an accused cannot be detained in custody merely on the presumption of guilt. “...bail is the rule and committal to jail is an exception.” Such interpretations emphasised that custodial detention should not be punitive, especially before conviction.
In Gurbaksh Singh Sibbia & Ors. vs. State of Punjab, (1980) 2 SCC 565, where a Constitution bench, for the first time, laid down the scope of Section 438, CrPC. The Court interpreted Section 438(1) in the light of Article 21 of the Constitution of India. The Supreme Court laid down the following principles with regard to anticipatory bail:
1) Section 438(1) cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. “Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.”
2) Where an application for anticipatory bail is preferred before the High Court or the Court of Session, it is incumbent upon the Court to apply its independent judicial mind to the matter and determine whether a prima facie case exists for the grant of such relief. The Court cannot abdicate this responsibility by deferring the decision to the Magistrate under Section 437 of the Code of Criminal Procedure at a later stage, as such a course of action would undermine the very purpose and intent of Section 438.
3) Filing of FIR is not a condition precedent to exercise of power under Section 438.
4) Anticipatory bail can be granted even after filing of FIR, as long as the applicant has not been arrested.
5) The provisions of Section 438 cannot be invoked after the arrest. After arrest the accused must seek his remedy under Section 437 and Section 439.
6) Order under Section 438 would not affect the right of police to conduct investigation.
7) Conditions mentioned in Section 437 cannot be read into Section 438.
8) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
9) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and the question ought to be re-examined after hearing. Such an interim order must conform to requirements of the Section and suitable conditions should be imposed on the applicant.
In Sushila Aggarwal vs. State (NCT of Delhi), 2018 (7) SCC 731, two major issues arose before the Supreme Court:
A. If the protection granted to a person under Section 438 Cr. P.C. should be restricted to a specific amount of time to enable the accused to surrender before the Trial Court and seek regular bail?
B. Whether the lifespan of anticipatory bail shall expire at the time and stage when the accused is called by the Court?
The Supreme Court has held that the time period for which anticipatory bail can be granted is discretionary and can vary depending on the facts and circumstances of each case. It placed reliance on Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, wherein, it has been held that anticipatory bail was a question of personal liberty, and hence not subject to a time period. In the case in question, the Court answered the two issues based on the reasoning it provided, that an order passed under Section 438 should not ordinarily be limited to a fixed period, but if the situation demands conditions should be imposed under Sections 437(3) and 438(2). With regard to the second question, the Court said that the term of anticipatory bail does not expire when a summons is issued by the Trial Court but can be prolonged until the trial is completed.
The Court laid down the following points which courts must take into account while dealing with cases under Section 438 of Cr. P.C. (Section 482 BNSS)-
• When a person complains of fear of arrest and seeks an order, the application should be based on concrete facts of the offense, focusing on why the person fears arrest as well as his account of the story, rather than ambiguous and universal allegations relating to one or more specific offenses;
• On the gravity of the threat of arrest the court should issue a notice to the Public Prosecutor and obtain facts even while granting provisional anticipatory bail;
• A person may apply for anticipatory bail before the FIR if the facts show that there is a credible reason for the arrest;
• The Court held that nothing in Section 438 of the Cr. P.C. compels the court to set restrictions barring relief in terms of time, recording of witness testimony, or filling an FIR. While granting anticipatory bail, the Court should consider the seriousness of the crime such as the type of crime, evidence gathered, the harm is done to the victim, etc. before laying down any conditions on the petitioner;
• An order granting anticipatory bail, cannot extend to a future occurrence constituting a commission of a crime and there cannot be a ‘blanket’ order;
• Anticipatory bail can be extended until the completion of the trial once the charge sheet is filed;
• Anticipatory bail does not restrict or impede the rights and obligations of the police and investigative authorities in any way. It also said that under Section 439(2), the police can bring a claim to the court to arrest the accused again in certain circumstances;
• The accuracy of an anticipatory bail may be reviewed by a superior court, at the request of the investigating authorities. There is a possibility of the order being set aside on failure to consider relevant facts and critical circumstances. This does not mean cancellation of the order but simply dismissing it.
The term ‘bail’ is derived from the French word ‘baillier’ which means ‘to give away or deliver’. Bail is defined as “the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.” According to Section 2 (1) (b) of the BNSS, the term means “release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or bail bond.” The definition has introduced two essential components i.e., bail bond and bond. The term ‘bail bond’ means an undertaking with sureties for the release of an accused from the custody while the term ‘bond’ a personal undertaking or bond without sureties for the release of an accused from the custody.
Section 2(1)(c) BNSS (Section 2(a) of CrPC) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force. An accused can claim bail as a matter of right if he is accused of committing a bailable offence. Thus, in bailable offences, it is the duty of the police officer or the court to intimate the accused about his right to get bail.
Section 47 (2) BNSS (Section 50(2) Cr.P.C.) makes it obligatory for a police officer arresting such a person without a warrant to inform him of his right to be released on bail. Under Section 478 BNSS (Section 436 of CrPC) a person accused of a bailable offence at any time while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.
Section 478 BNSS (Section 436 of CrPC) provides for in what cases bail to be taken and as per this, bail can be granted provided following conditions are fulfilled:
• When any person other than a person accused of a non-bailable offence
• Is arrested or detained without warrant by an officer in in charge of a police station, or appears or is brought before a Court,
• If he is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail.
• Then such person shall be released on bail.
Therefore, Section 478 BNSS (Section 436 of CrPC) is mandatory in nature and the court or the police have no discretion in the matter. Any accused person arrested for a bailable offence willing to provide
bail must be released.
Proviso to the Section further provides that such officer or Court:
• if he or it thinks fit, may, and
• shall, if such person is indigent and is unable to furnish surety, the courts shall release him on his execution of a bond without sureties.
Explanation to the Section further clarifies that where a person is unable to give bail bond within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.
Section 478(2) BNSS (Section 436(2) CrPC) allows the Court to refuse bail to a person who has previously violated the conditions of their bail bond, such as failing to attend court at the designated time and place, if they appear before the Court again in the same case, or are brought before the Court
in custody. This refusal does not affect the Court’s power to impose penalties under Section 491 BNSS (Section 446 Cr.P.C). Therefore, the Court still has the power to make the person or their surety pay a penalty for breaking the bail bond conditions, as mentioned in Section 491 BNSS (Section 446 Cr.P.C).
In Amar Nath Singh vs. The State of Jharkhand, 26 October, 2021 case, where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may by virtue of Section 436 (2) CrPC (Section 478(2) BNSS) refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court.
In Maneka Gandhi vs. Union of India, AIR 1978 SC 597, Justice Bhagwati and Justice Krishna lyer highlighted the faulty bail system which needs reconsideration. In this case attention was brought to the impact of indigence of an accused on his right of bail.
In R.D. Upadhyay vs. State of A.P., AIR 2006 SC 1946, it was brought to the notice of court that there are many undertrials languishing in jail for non-furnishing of surety despite bail order granted in favour of them. It was held by court barriers in certain categories of cases, court can consider release of such prisoners on personal bonds.
In Rasiklal vs. Kishore s/o Khanchand Wadhwani, AIR 2009 SC 1341, the Supreme Court has held that the right to bail for bailable offences is an absolute and in-defeasible right and no discretion can be exercised as the words of Section 436 CrPC (Section 478 BNSS) are imperative and the person accused of an offence is bound to be released as soon as the bail is furnished. The Court further observed that there is no need for the complainant or the public prosecutor to be heard in cases where a person is charged with a bailable offence. Moreover, the court has no discretion to impose any conditions except to demand security.
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