“Personal liberty is a very precious fundamental right, and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases”
It has been highlighted, time and again, by the Constitutional courts that ‘bail is the rule and jail is an exception’. This saying emerges from the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. The objective of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person will stand his trial when called upon.
The Supreme Court has dealt with the issue of arrest and imposed checks and balances on the powers of arrest, time and again, in many cases. The case of Arnesh Kumar v. State of Bihar is one such example where the court has set the precedent and is applicable to all the cases where the offense is punishable for a term of up to seven years. It has been held that ‘the arresting officer must put himself to question on whether the arrest is really required? What purpose will it serve? What objective will it achieve? If the answers are addressed and certain conditions are satisfied, only then the arresting powers need to be exercised. The police officers should, before arrest, have a reason to believe the information and material that the accused has committed the offense. Furthermore, the police officer has to be satisfied that the arrest is necessary and for one or more purposes envisaged by subclauses (a) to (e) of clause (1) of section 41 of the CrPC (now section 35 of BNSS, 2023).’
However, even after such guidelines, the provision to arrest has been sparingly used which should be the last resort and cannot be done in a casual manner.
REGULAR BAIL
The Indian criminal law, that is, Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) classifies the offense as, a bailable offense and non-bailable offense. The bailable offense is defined in section 478 of the BNSS. In cases where the accused has the legal right to be released on bail, comes under a bailable offense. They are generally considered less serious in nature. If a person is accused of such an offense, the police or the court must grant bail upon submission of the required surety or bond by the accused. The right to bail in such cases is absolute and cannot be denied as long as the legal conditions are met.
Non-bailable offenses are more serious in nature and the bail is not a matter of right but a discretion of the court. It is dealt with under section 480 of BNSS, 2023. The courts take into consideration the ‘tripod test’ before granting such bail. This test was evolved as the allegations of the crime on the accused do not justify that the person should be sent into custody, there must be compelling factors to prove otherwise.
The tripod test is a set of three criteria used by Indian courts while considering bail applications.
Flight risk: The possibility of the accused fleeing the country or absconding to avoid prosecution is an important factor as the major purpose of arrest is to secure the presence of the accused during trial.
Influencing of witness: possibility of Influencing or attempting to influence or tamper with witness.
Tampering of evidence: Possibility of destroying, altering, or concealing evidence related to the crime.
The bail granted in such bailable and non-bailable offenses is known as regular bail.
ANTICIPATORY BAIL
Pursuant to the realization of the widespread arrest all over the nation over the arbitrary decision-making of the police department or to circumvent the four corners of the law, it has become common to approach the courts for anticipatory bail in apprehension of arrest. The applicant applies for bail not on the actual arrest but on mere apprehension.
The Supreme Court laid the law on anticipatory bail in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra wherein the court has discussed at length the power of arrest and the question of anticipatory bail.
The court expounded on the relevant consideration for the exercise of the power of arrest and the factors and parameters that deal with anticipatory bail:
- “The nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
- The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
- The possibility of the applicant to flee from justice;
- The possibility of the accused’s likelihood to repeat similar or other offenses.
- Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
- Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
- The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. In the cases in which the accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
- While considering the prayer for the grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair, and full investigation and there should be prevention of harassment, humiliation, and unjustified detention of the accused;
- The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
- Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
The crystallization of the factors is not exhaustive but only illustrative.
LEGAL DIFFERENCE
The major distinction between regular bail and anticipatory bail is on the following grounds:
Anticipatory bail is a preventive remedy whereas regular bail is a remedial measure.
An anticipatory bill is applied before an arrest based on apprehension of arrest, whereas the regular bill is applied after the arrest has taken place during the pendency of the trial or police custody.
The anticipatory bail application is considered by the Session Code or High Court, whereas the Magistrate Court (for petty offense) and the Sessions Court (for serious offense) consider the offense for granting bail.
Section 482 of BNSS deals with anticipatory bail and section 480 and 483 of BNSS deal with regular bail.
Anticipatory bills are applicable only for non-bailable offenses whereas regular bills can be applied for both bailable and non-bailable offenses.
The anticipatory bail includes conditions such as cooperation with the investigation, not leaving the country, etc., whereas in the regular bail, the conditions may include surety, not tampering with evidence, etc.
The anticipatory bill can be revoked if conditions are violated or circumstances changed, and the regular bail can be revoked for non-compliance or changed circumstances.
DEBATES AROUND BAIL
Although the provision around granting seems like a cakewalk in letters, the real challenges arise in the actual implementation.
Exceptional circumstance rule: The Supreme Court and high courts continue to stress that anticipatory bail is not an absolute right, but a statute to remedy, to be granted only in exceptional circumstances, such as when the court finds the allegations to be false, politically motivated, or frivolous. This is particularly relevant in serious offenses like corruption or violent crimes where courts are increasingly cautious about granting pre-arrest protection.
Bail for foreign residents: Recent cases have highlighted concerns about misuse, especially by individuals residing abroad. Courts have ruled that while anticipatory bail applications can be filed from abroad, the accused must return to India and cooperate with the investigation or risk dismissal of their application. This aims to prevent the dilution of the judicial process and ensure that anticipatory bail is not used to evade justice.
Societal Impact: Courts are increasingly weighing the social impact of granting anticipatory bail, especially in cases involving public violence and high-profile accused. There is concern that a liberal grant of anticipatory bail may send the wrong message and undermine deterrence, particularly in cases of daylight violence or offense by influential individuals. The debate also persists on how to balance the presumption of innocence with concerns about public safety and the integrity of the trial process.
Better mechanism: There is an ongoing concern about the high number of undertrials in Indian jails, leading to calls for a more liberal and evidence-based approach to regular bills, especially for non-violent and first-time offenders. Over 70% of India’s present population consists of dryers, most of whom are poor, marginalized, and unable to secure bail due to financial constraints or lack of legal knowledge.
Economically weaker sections: Bail often requires monetary bonds or securities, which the economically weaker section cannot afford. Many undertrials remain in jail even after bail is granted because they cannot meet the financial conditions. The Supreme Court has repeatedly criticized the bail system for being anti-poor and called for comprehensive bill legislation that addresses these disparities.
CONCLUSION
The distinction between anticipatory bail and regular belt reflects 2 fundamental aspects of the criminal justice system that is protection against arbitrary arrests and safeguarding personal liberty post-arrest. While regular bills service remedial measures post-arrest, anticipatory bail acts as a preventive tool in safeguarding individuals’ liberty in the face of potential misuse of police powers.
The current debates highlight the delicate balance the court must strike between individual liberty and societal interests. There is increasing judicial caution in granting anticipatory bail in grave or high-profile cases, reflecting concerns about potential misuse and public safety and the deterrent effect of the law. Simultaneously, the bail system’s practical operation remains unequal and exclusionary, disproportionately impacting the poor and marginalized, who often languish in jail due to their inability to meet conditions or access effective legal aid.
Beautiful pronouncements have repeatedly called for systematic reforms to make pain more accessible, affordable, and equitable, emphasizing a compassionate, evidence-based approach, especially for nonviolent or first-time offenders. Ultimately, both anticipatory and regular bail Are vital to upholding personal liberty and ensuring a fair trial, but their effectiveness depends on judicial prudence, respect for human rights, and reforms that address structural inequalities. That’s maintaining the crucial balance between individual rights and the broader interest of justice.