The remedy of Anticipatory Bail flows from Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (earlier Section 438 of the Criminal Procedure Code, 1973), however, the same is rooted in Article 21 of the Constitution of India, which provides for Right to Liberty.
In the case of Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020) 5 SCC 1, the Hon’ble Supreme Court interpreted the concept of anticipatory bail, and linked it with the sacred concept of personal liberty of an individual, and as such, expanded the scope and horizons of anticipatory bail for accused persons. The Hon’ble Supreme Court in the said landmark case took cognizance of the fact that the power to arrest is one of the chief sources of corruption in the police, and liberalized the approach to Anticipatory Bail vesting by and large discretion with the competent court in assessing the case on its merits as per its own unique facts and circumstances.
In matters of corruption, however, the Hon’ble Supreme Court has taken a cautious view. In Sushila Aggarwal and others (supra), the Hon’ble Supreme Court read down the view that economic offences would require a different approach vis-à-vis the remedy of anticipatory bail. However, in recent judgments, the Hon’ble Supreme Court has laid down the law with utmost clarity on anticipatory bail in corruption-related matters.
CAVEAT IN CORRUPTION
Recently, in the case of Devinder Singh Bansal vs. State of Punjab (2025 INSC 320), the Hon’ble Supreme Court has laid down parameters for Anticipatory Bail to be satisfied in case of corruption-related matters. Para 21 of the said judgment is relevant and is reproduced as it is:
21. The parameters for grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner accused for grant of anticipatory bail and there is no frivolity in the prosecution.
The Court distinguished the case of regular bail from the remedy of anticipatory bail in such matters, and attributed a higher degree of restraint upon the discretion of the Courts in dealing with such matters. The Court holds further as follows:
24. If liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant – accused of indulging in corruption.
GROUNDS FOR ANTICIPATORY BAIL
The aforesaid judgment of the Hon’ble Apex Court, although it highlights the issue of corruption in society and its damaging effects on governance and public justice, it does not, in any way, dilute the legitimate grounds available for seeking anticipatory bail to an accused.
The case for anticipatory bail, however, must not rest on isolated grounds like no need for custodial interrogation, personal liberty of the accused, etc. In the case of Sumitha Pradeep vs. Arun Kumar CK (2022) 17 SCC 391, the Hon’ble Apex Court has held that Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked, and he should be granted anticipatory bail.
Hence, the most important ground to be pressed is whether a prima facie case against the accused is made out or not. In matters of corruption, the Courts may not be so indulgent as to grant anticipatory bail, especially if a prima facie case is made out. In addition to the above, exceptional grounds must also be pleaded in the application to demonstrate that the allegations are frivolous. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or refuse it. Whether to grant or not is a matter of discretion; equally, whether and if so, what kind of special conditions are to be imposed or not imposed are dependent on the facts of the case, and subject to the discretion of the court.