Guest Post: The Gendered Blind Spot in India's Pre-Arrest Bail Architecture

(This is a guest post by Akhil Yadav)

The Allahabad High Court granted Swami Avimukteshwaranand Saraswati anticipatory bail on 25 March 2026 for a case which involved two boys according to the Protection of Children from Sexual Offences Act 2012 (POCSO) which the authorities had filed. The first informant has since challenged the order before the Supreme Court by way of a Special Leave Petition. The High Court only provides a short explanation of the important question which the author needs to explain. The core issue remains unidentified by the High Court and the involved parties and the following media coverage. The question investigates why Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) never applied to this case because of the facts and what that reveals about an existing gap in India's pre-arrest bail system which has persisted since 2018 and which the 2023 legislative changes did not resolve.

The Anticipatory Bail Bar and Its Pedigree

The High Court and Court of Session receive authority to decide pre-arrest release matters according to Section 482 BNSS which replaces Section 438 CrPC. The section establishes an exception which states that “Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.” The current provision derives directly from Section 438(4) CrPC which the Criminal Law (Amendment) Act 2018 introduced following the Unnao and Kathua incidents. The provision defined Sections 376(3) and 376AB and 376DA and 376DB of the IPC as offences which included minor titles that described ‘Punishment for rape on woman under sixteen years of age’ and ‘Punishment for gang rape on woman under sixteen years of age.’

The legislative purpose was visible and urgent: to deny perpetrators of the most heinous sexual offences against girl children the protection of pre-arrest bail. The IPC provisions from 2023 BNS and BNSS enactment consolidated into BNS Sections 65 and 70(2) which resulted in an amendment to the bail restriction. Section 65 BNS punishes rape of a woman under sixteen years with a minimum of twenty years' rigorous imprisonment. Section 70(2) prescribes life imprisonment or death for gang rape of a woman under eighteen years. The most important aspect of the bar refers to the separate provision which exists within POCSO itself. The comparison between the two laws shows how the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 works. The Act includes Section 18 which establishes that Section 438 CrPC which became Section 482 BNSS through the current law shows no applicability to cases that involve arrests under the Act. The system uses a complete prohibition which functions through its built-in mechanisms.

The design of the substantive offences creates a gap which exists between two parties. The BNS 2023 defines rape in gender-specific terms which determine that a man must commit the crime against a woman. The law only permits Sections 65 and 70(2) to be used for aggravated rape cases which involve female victims.

The POCSO uses a gender-neutral framework to make all sexual offences against children of any sex into criminal activities. The existing system faces a structural problem because POCSO recognizes identical offences against male and female children while BNSS 2023 anticipatory bail bar only applies to offences which fall under specific gender-based rules of the BNS. The law blocks male child offences which match serious status from the statutory prohibition.

The Gauhati High Court's Interpretation and Its Limits

The initial investigation into this disjunctive statement requires a resolution of Section 482(4) BNSS which the Gauhati High Court examined as a different textual issue. The literal interpretation of "and" which connects Section 65 to Section 70(2) creates a ridiculous situation because an accused person requires simultaneous charges under both laws yet this situation remains impossible to achieve since the laws define separate crimes which have different age requirements for victims and different penalties. The ruling in June 2025 establishes “and” should function as “or” because interpreters must follow purposive reading when literal interpretations lead to nonsensical results. Both Section 65 and Section 70(2) declare “woman” whether these sections connect through conjunction or disjunction. The court must interpret ‘woman’ according to its established meaning because no evidence exists to support a “child” definition which would expand a legal provision beyond its established boundaries through purposivism. The Gauhati HC's reading establishes wider restrictions for cases involving female victims while it maintains complete control over cases involving male child victims. The gender gap continues to exist after fixing the ‘and/or’ problem.

The Consequence in Practice

The FIR in the Prayagraj case was registered under POCSO Sections 3, 4(2), 5(1), 6, 16, and 17, alongside Section 351(3) of the BNS (criminal intimidation). The BNS Sections 65 and 70(2) charges could not exist because both sections require a female victim whereas the alleged victims are male. The anticipatory bail bar in Section 482(4) BNSS therefore never entered the picture. The Allahabad High Court used Section 482(1) framework to analyze the case according to Sushila Aggarwal v. State NCT of Delhi, which listed three factors to determine bail eligibility based on the offence's nature and severity and evidence tampering risk and flight risk.

The High Court's ruling about Section 29 shows that guilt presumption cannot start until prosecutors present charges, which matches the Delhi High Court's complete explanation in Dharmander Singh v. State (Govt. of NCT, Delhi) and the Allahabad HC's parallel decision in Monish v. State of U.P.. The court accepted the argument because pre-arrest application of Section 29 would demand a small trial and violate the right of silence while forcing an accused person to disprove an uncharged accusation. The blog has explained the Section 29 presumptive clause through its analysis of the court's reasoning, which builds a shared understanding among High Courts despite remaining areas of disagreement.

The Structural Asymmetry and What It Means

Step back from the facts of the Prayagraj case and consider what the structural gap produces in the abstract. A person accused of aggravated penetrative sexual assault of a child below twelve years, an offence under POCSO Section 5(m) carrying a minimum sentence of twenty years faces very different pre-arrest bail positions depending solely on the victim's sex. If the victim is a girl, the Explanation to Section 65 BNS brings the case within the ambit of BNS Section 65 (rape of a woman under twelve years), and Section 482(4) BNSS bars anticipatory bail entirely. The charge against him only covers POCSO when the victim is a boy since Section 482(4) does not apply to him; Section 482(1) gives the court authority to grant anticipatory bail. The gravity of the offence is identical, the minimum sentence may be identical, the harm to the child is identical but the accused's access to pre-arrest bail protection is radically different, turning entirely on whether the child is male or female.

This asymmetry is not an argument about whether anticipatory bail should or should not have been granted in any particular case. Courts retain ample discretion to refuse anticipatory bail even without a statutory bar and in cases of serious sexual offences against children that discretion should be exercised with great care. The statutory framework eliminates discretion for judges when girls become victims while boys maintain their right to judicial discretion.

Towards a Fix

Two distinct paths exist which lead to a solution. The narrower and more immediately achievable solution requires Section 482(4) BNSS to include POCSO Sections 5 and 6 which define aggravated penetrative sexual assault and its punishment. The proposed change would expand the anticipatory bail prohibition to include serious sexual offences against male children which POCSO recognizes. The BNS rape provisions should receive gender-neutral treatment of victims according to the recommendations made by the Law Commission and the Justice Verma Committee and the 2013 Ordinance since this change would extend BNS Sections 65 and 70(2) to male child rape victims which leads to automatic application of Section 482(4). The proposed reform has faced ongoing resistance which makes it improbable to become the speedier solution to the problem. Section 482(4) BNSS will maintain its protection yet which depends on the child's sex until one of these methods gets implemented. This result contradicts the gender-neutral child protection system which POCSO established through its implementation.

Guest Post: Renumbering as Repeal? The Allahabad High Court on the interplay of BNSS with the SC/ST Act

(This is a guest post by Ammar Shahid)

Two orders from the Allahabad High Court raise a peculiar question: does the bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act“) continue to operate now that the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) has replaced the Code of Criminal Procedure, 1973 (“CrPC“)?

In Dinesh Kumar Srivastava v. State of UP (December, 2025), the applicant faced an FIR under Sections 376, 506, 406, 323, and 504 IPC along with Section 3(2)(v) of the SC/ST Act, arising from allegations of a relationship formed on the matrimonial website jeevansathi.com allegedly on a false promise of marriage. He sought anticipatory bail under Section 482 of the BNSS. The informant’s counsel opposed this on the ground that Section 18 of the SC/ST Act barred it. The Court disagreed, holding that firstly, Section 18 specifically refers to “Section 438 of the Code” and anticipatory bail applications are now filed under Section 482 BNSS, the bar had no application. Secondly, the Court held that prima facie the material on record did not establish an offence under Section 376 IPC, given that the relationship appeared consensual. The petition was allowed, and bail granted.

Next, Sushil Kumar v. State of UP (May, 2026) arose from rejection of an anticipatory bail application solely on the ground of Section 18. The alleged facts involved a commercial dispute over unpaid sale consideration for food grains, accompanied by an alleged assault and caste-based insult. The High Court set aside the trial Court’s order on two grounds. The first was the trial Court’s failure to consider the principle laid down in Prathvi Raj Chauhan v. Union of India, where the Supreme Court held that courts retain the power to grant pre-arrest bail in SC/ST Act cases where prima facie the ingredients of the Act are not made out. The second was the BNSS transition argument drawn from Dinesh Kumar Srivastava. The High Court held that these two factors had not been considered by the trial court, and sent the matter case for fresh consideration.

Section 8 of the General Clauses Act

Section 8 of the General Clauses Act, 1897 provides that where a Central Act is repealed and re-enacted with or without modification, references in any other Central Act to the repealed enactment shall, unless a different intention appears, be construed as references to the corresponding provisions of the re-enacted legislation.

Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.

Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.

The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.

What the 2018 Amendment Tells Us

The legislative history of Section 18 adds important context. In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court permitted anticipatory bail in SC/ST Act cases subject to certain conditions. Parliament responded within months by enacting the SC/ST Amendment Act, 2018, inserting Section 18-A which, among other things, reinforced the bar on anticipatory bail. Parliament actively closed a space that the Supreme Court had opened (which it has, since, reopened - more on that below).

The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.

The Prathvi Raj Chauhan Exception

Both decisions also place reliance on the principle formulated by Prathvi Raj Chauhan, where the Supreme Court held that in cases where no prima facie material exists to make out an SC/ST Act offence, Courts may grant pre-arrest bail through inherent jurisdiction under Section 482 CrPC. This reading of Prathvi Raj Chauhan, however, is broader than what the judgment actually supports.

The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.

Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.

This issue is also visible in Dinesh Kumar Srivastava. The Court's own prima facie analysis found no offence under Section 376 IPC on the basis that the relationship appeared consensual and no force was alleged. But the Prathvi Raj Chauhan threshold is directed at the absence of SC/ST Act ingredients from the face of the FIR, not at the tenability of a connected IPC charge. Where an FIR contains specific allegations of caste-based insult or harassment, as it does in both the decisions under discussion, it is not obvious that the threshold for invoking the inherent jurisdiction exception has been crossed. Hitesh Verma v. State of Uttarakhand, which Sushil Kumar itself cites, reaffirms that the bar under Section 18 is absolute where SC/ST Act offences are prima facie made out. Citing Hitesh Verma while simultaneously remitting for fresh consideration of anticipatory bail, without a definitive holding on whether SC/ST Act ingredients are absent from the FIR, creates a real tension that the judgment leaves unresolved.

Conclusion

The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.

The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.

[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]

Gujarat, Anticipatory Bail, and Police Custody: A Peculiar Practice

Almost a year ago now, on 07.08.2024 the Supreme Court delivered its judgment in a contempt petition titled Tusharbhai Shah v. Kamal Dayani [2024 INSC 588 ("Tusharbhai")]. The only reason to cover the judgment is because it offered a window into a highly peculiar practice, and in turn offered a timely lesson about the sheer degree of variety in how criminal law works across India. A lesson which, sadly, falls on deaf ears more often than not.  

After giving a brief about why Tusharbhai Rajnikantbhai Shah went to the Supreme Court, the post takes a brief detour to give a quick explainer about how anticipatory bail works in India, since that is the heart of the case. I then go into the peculiar practice of enforcing anticipatory bail in Gujarat which the Supreme Court was confronted by in Tusharbhai — a practice which the Court has declared was contrary to law. I did not find any other jurisdiction as having imported this condition of permitting remand while dealing with anticipatory bail. It would be interesting to examine whether having this condition made courts in Gujarat more hesitant in granting anticipatory bail or made them more liberal.  

The Facts in Tusharbhai 

A commercial dispute about the sale of property led to registration of a criminal case against Tusharbhai Rajnikantbhai Shah. He sought anticipatory bail fearing his arrest but his plea was rejected by both the Sessions Court and the High Court of Gujarat. This led to his first petition before the Supreme Court, and he finally got some reprieve as the Court gave him interim protection of being released on anticipatory bail if arrested till his petition was finally decided, so long as he cooperated with the investigation.

Shah went to the police to offer his cooperation. He was formally arrested and released on bail in line with the Supreme Court's orders, and directed to come again. On his second visit to the police station, he was given a notice to appear before the concerned local court on 13.12.2023 "for the matter of remand". On this day, police filed an application before the court asking to take Tusharbhai Shah into police custody for seven days. The magistrate was seemingly shown the Supreme Court's order granting Shah his temporary reprieve. It would seem that the magistrate did not think this reprieve came in the way of granting custody of Shah to the police, and directed him to be sent to police custody for three days. Shah was confined in police custody and, according to him, was tortured. When the three days ended, he was brought before the court, and now was granted regular bail by the court. Shah filed a detailed complaint later on about the ill-treatment he faced in custody which the court did not entertain.

All this took place in the shadow of the Supreme Court petition that Shah filed, which was still pending. With good reason, he perceived the acts of the police and the judge to be in contempt of the Supreme Court's orders. Shah now filed his second petition before the Supreme Court, for contempt. What interests me here is not the allegations about police torture and how that was first handled by the trial court and later the Supreme Court in the contempt, but the police having asked for his custody in spite of granting him anticipatory bail and the magistrate not only being fine with the request but granting it. To understand  these aspects, we need to deal a little bit with anticipatory bail. Readers familiar with the concept can skip the next part.

The Mechanics of Anticipatory Bail 

The blog has covered anticipatory bail on many an occasion and a brief recap would do. Normally, 'bail' as a concept refers to being released from actual custody. 'Anticipatory Bail' by contrast refers to a remedy in which a person can apply for bail in anticipation of being arrested and taken into custody. A person must demonstrate a reasonable apprehension of arrest in a case where she does not have a right to bail (termed a 'non-bailable' offence), and show that permitting the arrest and custody will be unjust. If a court agrees, it can pass a directive to police that, in the event of arresting the person, he must be released on bail. 

Any bail, whether regular bail which is sought after arrest, or a direction for anticipatory bail sought prior to arrest, means a release from custody that continues till a court permits the re-taking of a person into the custody of law by cancelling bail (or a superior court finding that the bail order was perverse). Normally, bail is granted on the promise of fulfilling various conditions, the most important of which is continued participation with the legal process. If an accused fails to do so, or meet any other condition, then bail can be cancelled. But without this cancellation, you can't send the accused into custody even while you are on bail. These concepts do not overlap.       

Explaining the Gujarat Model of Anticipatory Bail 

Well, it would seem they did overlap in Gujarat, which is why the police had no qualms in seeking police custody of Tusharbhai Shah, and the magistrate no qualms in granting it, even though he had been granted bail and no cancellation of his bail was sought. In the hearing before the Supreme Court, lawyers for many of the contemnors confirmed this: In Gujarat, they said, it was a "long prevailing practice" for courts to grant anticipatory bail with an express stipulation that at any point of time the police can make a request for custody of an accused where felt necessary for an investigation. They cited a 2014 decision of that High Court in support of their claim. In this case as well, police claimed non-cooperation by Tusharbhai Shah, and the magistrate upon reviewing the record agreed and decided it was a fit case for custody.

The explanation did not cut it for the Supreme Court as a justification for the conduct of the police officer and the magistrate in question in the facts and circumstances of this case because the Supreme Court's order never had any such stipulation permitting custody in the first place. It also specifically held that this "long prevailing practice" of Gujarat was contrary to law and condemned it. But in doing so, the Court did not go into the practice much, which is precisely what piqued my curiosity when I read about it.

Was this claim of a long standing practice true? Absolutely. And it has a fascinating history that goes much further back than 2014. The practice appears to have been birthed in the first few years of anticipatory bail. At this juncture court were, to put it mildly, extremely reticent about this concept and worried deeply about its negative impact on a successful police probe. The broad ambit of the provision invited courts to invent guidelines to prevent misuse, and one saw different High Courts come up with ideas for controlling arbitrary judicial discretion. The Gujarat High Court made such an attempt in Somabhai Patel (1976) where the Court laid down 12 guidelines for courts to exercise anticipatory bail. One of these guidelines was that:

The power cannot be allowed to be invoked in order to defeat, thwart, stall, or render impotent, the provisions relating to remand to police custody for the purposes of facilitating investigation. It may, therefore, be specified in the order that the accused is to be released on anticipatory bail provided he is not required to be remanded to police custody and that if he is so required the police officer would be at liberty to obtain suitable orders from the Court in that behalf either before the arrest or within a reasonable time of the arrest. [Emphasis supplied]

Now, a trend of High Courts placing restrictive covenants upon exercise of judicial discretion for grant of anticipatory bail was stopped in its tracks by the Supreme Court in Gurbaksh Sibbia (1980). But as I have argued earlier, the inherent tension between liberal grant of anticipatory bail and its negative impact on the police investigation was never quite resolved. So it would seem that at least this guideline of Somabhai Patel continued to be followed. I came across one such order in Pankaj D. Suthar v. State (1991) where the High Court granted anticipatory bail in an atrocities act case on a condition that the accused report to the police to cooperate with the probe and "thereafter also for the purposes of being taken on remand in the event of necessities so felt by the Investigating Officer, which the learned magistrate shall decided the same on merits without being influenced by the fact that the petitioner is ordered to be released on an anticipatory bail by this Court on usual terms and conditions." (Interesting aside: Justice J.B. Pardiwala appears to have been the counsel appearing for the petitioner).

In the 2000s, this condition was fully part of the system, so much so that you can find lawyer's suggesting it as a means to convince a court to grant anticipatory bail in an otherwise unfavourable case. For instance, the counsel for the petitioner in Yazdi Icchaporia (2003) the lawyer suggested that stringent conditions may be imposed while granting bail including "specific condition giving liberty to the prosecution to move remand application in the event of grant of anticipatory bail" (the petition failed regardless). The same submission, with the same result, was made in Jitendra Rajgor (2004). An example of just how entrenched a view it was that custodial remand was permissible for persons on anticipatory bail can be seen in Pragnesh H. Parikh (2007) where when the magistrate denied a remand request for an accused who was on anticipatory bail, the sessions judge set aside this observation in a revision petition stating there was no such bar on seeking custody. Where anticipatory bail was being granted, especially in financial crimes, the bail order would carry a standard stipulation at the end — "it would be open to the investigating officer to file an application for remand if he considers it proper and just"

The first ripples in this otherwise placid pond of the Gujarat Model of anticipatory bail were seen after the Supreme Court's decision in Mhetre (2010). This judgment emphasised that there was no difference in the effect of an order for bail and anticipatory bail, and also deprecated a practice of passing anticipatory bail orders of a limited duration of time. As one can see, treating anticipatory bail and bail as different was the crux of how Gujarat was enforcing anticipatory bail. This was the logical justification for conditions where the life of anticipatory bail orders was restricted, and the remand condition imposed. 

A petitioner naturally challenged such conditions soon thereafter, and in Jashuben (2011) the Court had to decide the issue. It held that a limited time period for an anticipatory bail was clearly contrary to how the Supreme Court had explained the law, and the condition could not continue. But for the other condition about remand, the Court upheld the condition and gave insight into why the approach had come to be so popular:

Uptil now, under the order of anticipatory bail, an accused would be, immediately, upon his arrest, released on bail. For the purpose of seeking remand, during such a period, he would be treated as if in custody, but, under the protective umbrella of the Court, under an order of anticipatory bail. Right of the prosecution to seek remand of an accused, who has been granted anticipatory bail, deletion of the said condition, without any substitution would create serious complication. In a given case, when the prosecution is desirous of seeking police remand, question would arise whether the anticipatory bail order should be granted and if it is required to be granted on merits, what would be the position of the remand application, which the prosecution may file, later on. Obviously, if an order of anticipatory bail is granted, the accused immediately upon his arrest shall have to be released on bail. As long as he remains on bail, the prosecution cannot seek his remand. The prosecution, therefore, shall have to seek cancellation of the bail, before it can apply for remand. This situation would create two complications. Firstly, parameters for cancellation of bail are entirely different from those, for granting or refusing bail. Secondly, any such application by the police seeking cancellation of bail, may consume considerable time during which period the evidence may be destroyed or lost. [Emphasis supplied]

The High Court lays bare for us the tension between too wide an ambit for anticipatory bail and successful police investigations, which continue to remain hinged upon securing custodial interrogations as the ideal form of cooperation. Legitimising a cumbersome process — of seeking cancellation — before police can go seek remand would tilt the system too far in favour of the accused. Permitting police to seek remand struck a balance because it effectively required a judge to decide the question, safeguarding liberty against the threat of immediate arrest. 

Another challenge to this long prevailing practice came in 2014. This time, the Single Judge referred the issue to a Division Bench, as he did not agree with the conclusions in Jashuben. It would appear that this Division Bench did not explicitly overrule the practice either, which continued to flourish till 2024.

Conclusion: A Complicated Set of Lessons from History

The Supreme Court has now declared a practice of permitting police remands for persons who are granted anticipatory bail as being contrary to law. From past experience, it is fair to expect some time before this decades-long practice is finally uprooted, and the message from on high to trickle down to the remotest districts in Gujarat. 

In declaring the practice as contrary to law, the Supreme Court emphasised the idea of personal liberty and held that allowing the police to seek remands in this fashion rendered anticipatory bail nugatory. But as we saw with a deeper scrutiny of the Gujarat approach, the condition imposed was not to render anticipatory bail nugatory but strike a balance between liberty and effective investigations, which remains the heart of anticipatory bail jurisprudence since the topic entered the lexicon. If anything, we saw that lawyers were actively batting in favour of this condition as a means to get anticipatory bail in otherwise difficult cases. 

One wonders whether the outright removal of this condition will make courts in Gujarat more reticent in giving anticipatory bail in those cases where, previously, this condition may have convinced them that the grant of relief will not hamper an effective investigation. I suspect that it may well prove to make courts a bit more hesitant, initially at least, and end up with a situation where the Supreme Court's avowedly pro liberty intervention ends up actively having a negative impact for personal libery. The entire episode is a reminder that the lessons from history are not as simple as we might think.

Paper Update: Confronting the Violence Within

At the start of the month, a bench of the Supreme Court dismissed a plea for anticipatory bail filed by a person accused of corruption [Devinder Kumar Bansal v. State of Punjab (2025 INSC 320)]. The person in question was accused of asking for bribes to do audit work, and now sought relief from court. For the uninitiated, 'anticipatory bail' is a remedy where a person goes to court claiming he entertains a reasonable apprehension of arrest in connection with a case, and if the court agrees, then it can pass orders directing that in the event of his arrest the police should release him on bail. 

Even a mildly critical reading reveals the problem. If all we need is reasonable apprehension that there may be an arrest, where does that leave the police's power of arrest and the consequential 'benefits' that arrests and custodial questioning are seen to bring to the pursuit of justice? It can bring it to an absolute standstill. Which is why no court since the introduction of anticipatory bail has read the provision strictly, and the law since 1973 is a study in seesawing judicial opinions on how to exercise this great discretionary power that the criminal procedure code had conferred upon judges. 

Devinder Kumar Bansal falls in the bucket of opinion which warrants extreme circumspection in the grant of anticipatory bail. It notes that the relief "can be granted only in exceptional circumstances where the court is prime facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous." Note that none of this is statutory criteria by the way — something made even more interesting by the fact that in Pakistan, law specifically made testing the falsity of allegations something a court must test while deciding anticipatory bail pleas. 

What makes Devinder Kumar Bansal even more interesting, and allows me to use it as a hook to shamelessly plug a small essay that has come in a volume titled Police Violence in India, is a one-line observation that it made in passing, stating that "if liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. [Emphasis supplied]" No matter the precepts that we should not turn persons into tools for achieving some unknown larger aims — such as a corruption free society — the observation is deeply revealing of the consistent tendency of courts to emphasise upon custody as a means to secure justice. Especially during investigations. 

In an essay titled 'Confronting the Violence Within', I've taken up this tendency of courts to make interpretive choices that privilege custodial interrogation and questioning in criminal cases, which only entrenches the importance of the custodial setting within the law. And courts conveniently want to only focus our attention on the good parts — custodial interrogation is more 'elicitation oriented' as they say — while turning a blind eye to what makes the custodial setting so unique for the investigator — its inherently violent nature. The paper looks at this tendency through two specific areas — law on the right against compelled self-incrimination, and law on anticipatory bail. While Devinder Kumar Bansal has been published after the paper and is relevant to its arguments from an anticipatory bail perspective, even for the law on self-incrimination there have been interesting developments, as the Supreme Court in granting some reliefs to Ranveer Allahabadia specifically directed him to be questioned without his lawyer present. The direction is not unique and in line with previous decisions by the Supreme Court which have consistently sought to remove any intermediary from the custodial setting to ensure its 'uniqueness' — again, without ever squaring up to face the violence which is what makes the custodial setting unique.

If the courts themselves places such a premium on the need for custodial interrogation, how can we expect custodial violence which is an inherently inseparable part of the process, to vanish? 

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

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.

 

Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio

The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After

In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble

Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales

Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion

While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.

Anticipatory Bail and Jurisdiction - The SC Weighs in

A long time ago, this Blog discussed some issues arising in the law under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], the provision which confers a right to seek bail in a case involving allegations of non-bailable offences prior to the police actually carrying out an arrest. This is more popularly referred to as 'anticipatory bail'. The issue that had been discussed was one of territorial jurisdiction — suppose you are in one State, say Maharashtra, and learn that a case has been registered against you in Delhi alleging commission of non-bailable offences. Can you file for anticipatory bail before the Maharashtra courts, or must you travel to Delhi?

While this issue has not received the legislative scrutiny that it deserved either in terms of the existing Cr.P.C. or the law that might replace it, the Supreme Court weighed in on the issue in Priya Indoria v. State of Karnataka & Ors. [SLP (Crl) No. 11423-26 of 2023, Decided on 20.11.2023 ("Priya Indoria")]. A case was registered in Chirawa, Rajasthan, and the accused persons sought and obtained anticipatory bail in Bengaluru, Karnataka. The validity of these orders was sought to be challenged by the victim, as well as the counsel for the State of Rajasthan, on grounds that the Bengaluru courts lacked jurisdiction to grant anticipatory bail. Priya Indoria noted the absence of any clear precedent on the issue and took this opportunity to fill the gap.

Three options were possible for the Court: (i) to hold there is no jurisdiction on courts other than the place where the case is registered; (ii) to hold that there are no fetters on jurisdiction of courts other than the place where a case is registered, such as the place where the accused is ordinarily residing, or; (iii) to hold that courts at places other than where the case is registered can grant limited reliefs in the interests of justice. It held in favour of the third view, which according to the bench struck a balance between the interests of the investigation while safeguarding personal liberty. 

The judgment discusses some of the existing judgments on the issue delivered by High Courts [Paras 17-18], besides also citing foreign law [Paras 19-20], to conclude that an interpretation totally excluding all courts outside the jurisdiction of the state where the case is registered "may lead to an anomalous and unjus consequence for bona fide applicants who may be victims of wrongful, mala fide or politically motivated prosecution." [Para 26] This is not only in light of the constitutional promise, but also because the text of Section 438 militates against the restrictive view [Paras 25, 31 to 35, 37, 42, 43, 44]. Importantly, it clarified that applications for anticipatory bail could be filed even before the concerned Sessions Court as opposed to being restricted only to High Courts which is what the existing orders had suggested.   

However, to ensure that the balance is properly struck, the Court supported only a "limited anticipatory bail in the form of an interim protection" be granted in "exceptional and compelling circumstances" where refusal to grant relief would cause "irremediable and irreversible prejudice", and set out various conditions for the same [Para 36] and reiterated that the Court must satisfy itself as to the territorial proximity of the accused with the jurisdiction where the petition is being filed [Para 40].

The 'middle path' approach enabling other courts to grant some protection to aggrieved persons was the view favoured in the earlier post on the Blog too. Nevertheless, it must be said that while Priya Indoria does arrive at this conclusion, it places a much higher burden upon litigants seeking relief than what was the existing position emerging from the judgments of various High Courts. One can reasonably wonder whether the onerous language of Priya Indoria will do more harm than good by condemning many genuine petitions by the wayside simply because the highly subjective, and also highly arbitrary, standards could not be met. One can also reasonably wonder what was the need for such high thresholds when all that the Court endorsed was limited interim reliefs to enable a person to appear before the other courts. 

The need for placing such a high threshold is seemingly justified in the mind of the Court because it wanted to discourage forum shopping [Paras 35, 36]. This point proceeds upon an assumption that while Section 438 Cr.P.C. does not place territorial fetters, there is still a proper forum for granting the relief of anticipatory bail, and it is the courts where the case is registered. This assumption is never really explored or explained at any place in the judgment, which is unfortunate given how it is central to the operative portions of the judgment.

For now, the judgment in Priya Indoria will at least ensure that those jurisdictions which, wrongly, stuck to a rigid territorial view of Section 438 Cr.P.C. can no longer deny applications only on such grounds. 

Anticipatory Bail under the CGST Act

On 17.07.2023, a Division Bench of the Supreme Court passed a curious judgment and final order in State of Gujarat v. Choodamani Parmeshwaran Iyer Etc. [SLP (Crl.) 4212-13 of 2019, decided on 17.07.2023 (Choodamani)]. The controversy arose out of petitions filed before the Gujarat High Court where persons challenged summons received by them under Section 70 of the Central Goods and Services Act 2017 [CGST Act]. The concerned persons and their firms were already facing a tax inquiry and feared that the notices might lead to their arrests. Accordingly, writ petitions were filed before the High Court, requesting for directions to the authorities to not take 'coercive action' pending the determination of the tax inquiry. 

The High Court, in an order dated 24.12.2018, agreed, being swayed by the plea that the concerned firms were willing to fully participate in the inquiry process which it was directed had to be concluded within eight weeks. This order was challenged by the State of Gujarat in 2019 itself, but besides getting a relaxation on the time limit for completing the tax inquiry, it did not manage to get any relief in respect of the protection against any coercive action. As a result, the inquiry apparently kept languishing, since the concerned persons did not respond to summonses knowing that they had protection from arrest. 

The Supreme Court finally decided the petitions in Choodamani and set aside the order in its entirety. It held that the High Court not have interfered with the statutory power of arrest conferred upon authorities by the CGST Act, drawing inspiration for this conclusion from earlier cases such as Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305]. The problematic nature of this view which deprives courts of striking a useful balance between the interests of the state and individual, and of the judgment in Padam Narain Aggarwal, have both been discussed recently in a post on the blog and I need not elaborate on it further.

What is of interest for this post is a separate observation in Choodamani. After referring to Padam Narain Aggarwal, it has held that the High Court's order was incorrect for a separate reason altogether: the High Court granted reliefs akin to anticipatory bail under Section 438 of the Criminal Procedure Code 1973 in the context of the CGST Act where such reliefs were impossible.

The paragraph in question merits repeating in full:

Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. 

To conclude that anticipatory bail is not envisaged under the CGST Act merely because there is no First Information Report being registered is as incorrect as proposition as any. The legal position of there being no necessity for any FIR to be registered for considering anticipatory bail is as clear as day. In no uncertain terms did the Constitution Bench in Sibbia [(1980) 2 SCC 565] declare that the filing of an FIR is not a condition precedent to the exercise of powers under Section 438 of the Criminal Procedure Code. Benches of varying strengths have repeated in unison ever since that the question which courts have to consider while exercising their powers of granting anticipatory bail is not the existence of any FIR, but the reasonableness of the purported apprehension in the mind of an accused of an arrest being imminent in respect of accusations disclosing a non-bailable offence. 

Nothing in the CGST Act requires courts to depart from this settled view, and it is safe to conclude that the Supreme Court of India was aware of this while passing Choodamani. Therefore, it is arguably safe to assume that this sentence is one of the many errors that have crept in this paragraph inadvertently — such as the reference to Section 69 when obviously Section 70 of the CGST Act was in the mind of the Court, and referring to the Criminal Procedure Code of '1908' when it could have only meant to refer to the 1973 Code.

Choodamani cannot, therefore, stand for the blanket proposition that no anticipatory bail request can ever be preferred in the context of the CGST Act. At best, it can only bolster the statutory position, that the accused must demonstrate reasonable apprehensions in respect of non-bailable offences under the CGST Act (which also contains bailable offences, for which anticipatory bail cannot apply). A clarification would not hurt, of course, to ensure that such an obviously inadvertent error may not come to prejudice the interests of personal liberty in the future, as even the mistakes of the Supreme Court are often too difficult to ignore for the courts below.

Guest Post - Restricting Anticipatory Bail under the Atrocities Act

(This is a guest post by Saranya Ravindran)

Section 438 of the Code of Criminal Procedure [CrPC] empowers the Sessions Court and the High Court to grant anticipatory bail, i.e., the direction to release a person on bail in the event of an arrest on a non-bailable offence. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) exempts the operation of Section 438 of the Criminal Procedure Code [CrPC], not allowing an accused to apply for anticipatory bail. 

Anticipatory bail was originally intended to serve as a remedy for baseless accusations and malicious prosecution. However, over time, through subsequent Law Commission Reports and Supreme Court’s expansive interpretation, anticipatory bail was granted wider scope. In addition to patently false accusations, anticipatory bail was also upheld as a remedy where the court was satisfied that conditions on bail, such as cooperation with police, would suffice to conduct investigations. Such an expansion heavily relied on the need to deter arbitrary arrests by Police in the post Emergency era without considering the importance of custodial interrogation for investigations. Subsequent judgements by the Court in Sushila Agarwal have endorsed such an expansive view of anticipatory bail.

It is in this context of a liberal interpretation of anticipatory bail that in 2018, the Supreme Court, in Mahajan (2018, SC) diluted the restriction of anticipatory bail in cases involving the Atrocities Act. Rather than an unconditional denial of anticipatory bail as per Section 18, there were now three circumstances under which anticipatory bail could be granted under the Act—"(i) if no prima facie case is made out, (ii) it is a case of patent false implication, or (iii) if the allegation is motivated for extraneous reasons”. While the first two restrictions arguably are a call back to the original intent with which anticipatory bail was incorporated in the first place, the third restriction of allegations motivated for extraneous reasons has led to ambiguities on what exactly constitutes a case of “patent false implication”. 

Following this, Parliament enacted the amendment of 2018, with an explicit provision that the amendment overrode the directions of Mahajan, reinstating that an accused under the Act cannot apply for anticipatory bail. The Supreme Court again heard a challenge to this provision in Prathvi Raj Chauhan v. Union of India (2020, SC), upholding the validity of the Act with a caveat that if a "complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A(i) shall not apply". The bar set out in this judgement becomes evident in the concurrent opinion of Bhat J. that anticipatory bail only extends to the rarest case, where no prima facie offence is shown in the FIR. In his words, such stringent terms "otherwise contrary to the philosophy of bail, [are] absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."

Thus, what Section 18 entails to do is not a blanket denial of anticipatory bail but limits the broad usage of anticipatory bail that has now become the norm among courts. Giving wide discretion to a grant of anticipatory bail, the Supreme Court in Sibbia (1980, SC), held that the concerned Courts 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”. Section 18 departs from this judgement, instead restricting the use of anticipatory bail to just mala-fide accusations or exceptional cases. Thus, in some ways, Section 18 merely goes back to the framer’s intent when seeking anticipatory bail, i.e., protection against accusations with no teeth and does not allow for the expansive application of anticipatory bail that the Supreme Court has interpreted over the years.

The importance of custodial interrogation and arrests to investigate offences cannot be understated in any crime, caste based or otherwise. But specifically, in cases under the Atrocities Act where the power imbalances between the SC/ST victim and an upper caste accused, its importance is even more stark. Cases under the Atrocities Act routinely reflect victim intimidation, threats to key witnesses and petitioners, etc. It is already recognised that if there is a reasonable apprehension that an accused is likely to tamper with evidence or threaten witnesses, then anticipatory bail ought not to be granted. Given the nature of caste-based crimes is one rife with power imbalances, a stricter line against anticipatory bail is justified under the Atrocities Act, even assuming it is not otherwise.

Application of Section 18

Despite a strict test being evolved for the grant of anticipatory bail under the Atrocities Act, the Delhi High Court granted bail in 80% of cases. In Naresh Tyagi v. State of NCT of Delhi (2020, DHC), anticipatory bail was granted despite CCTV footage establishing an offence. In Vasant v. State of Mahrastra, anticipatory bail was granted by the Supreme Court despite prima facie case being established. Rather than using the principles of granting anticipatory bail from Prathvi Raj Chauhan that restricted the grant of bail, courts grant bail borrowing lines of rationale from Mahajan, even if they do not cite it. There are two grounds under which anticipatory bail is most commonly granted—prima facie  case being set out and false accusations.

Prima Facie Establishment of Case

While it is evident that anticipatory bail under the Atrocities Act can only be granted in exceptional cases where no offence has been made out in the FIR, courts consistently dive deeper into whether the offence as alleged meets the standards set out by the Act. In fact, Danish Khan v. State (Govt. of NCT of Delhi)  (2021, DHC) explicitly says that "grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case…" which, in reality, it is not. A consideration of whether the ingredients of the offence are met in their entirety is a matter of trial. When considering the prima facie establishment of case depends merely on whether there is a reasonable belief based on the FIR of the presence of a cognizable offence. That has been the bar set by the Supreme Court. However, every decision of the High Courts in such cases analyzes the technical burdens that the prosecution has to satisfy under the Act to convict the accused, namely the two ingredients needed to establish a case under Section 3(1)(r)—"(i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within 'public view'" [Sanjay Singh, 2021 DHC] Both of these are not just improper considerations for determining anticipatory bail as explained above, they also impose a high burden for judging whether a cognizable offence occurred. 

A. Intentional Insult

The Supreme Court, has time and again, across cases like Dinesh Buddha (2006, SC) and Khuman Singh (2019, SC) held that evidence should show that the "offence was committed by the appellant only because the deceased belonged to a Scheduled Caste". This standard been used by courts across decisions such as Naresh Tyagi and Danish Khan. But proving that the exclusive reason for an offence was caste-based motivation is a high bar—the vast majority of crimes might not be exclusively motivated by casteist reasons, or even when they are, proving that a sexual assault is motivated by casteist motivations since casteist biases are subconscious, normalized, behavioural traits in everyday lives of upper castes and clear material evidence, either orally or otherwise to that effect is harder to gather.

The amendment to the Act under Section 8(c) tries to ease this burden by presuming that an accused knew of the victim's caste only when they had prior knowledge of the family, this is rarely applied by the Delhi High Court. But more substantially, the surname or place of residence in a village are easy identifiers of caste and, therefore, even if it cannot be proven that a person specifically knew of one’s caste, it is likely the accused did. 

B. Public view

A precedent for defining public view is Sanjay Singh, which interprets this phrase as the "public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present". Danish Khan, Binay Kumar Chauhan v. State (NCT of Delhi) (2020, DHC) and Suraj Malhotra v. State (2020, DHC) all subscribe to this understanding of "public view". And even this restrictive provision on when an offence can said to be constituted is subject to further constraints—relatives or friends of the accused hearing casteist abuses are exempt from the definition of "public view”. With witness intimidation and a host of private offences which is where caste abuses most often thrive, this bar is again a high burden victim often struggle to meet. 

False Accusation

The second most commonly used defence during anticipatory bail proceedings is the claim of the victim alleging false accusations. Especially given that the vast majority of cases under the Atrocities Act have underlying tensions such as land disputes or property rights issues (round 75% of bail hearings under the Act across High Courts in Delhi, Telangana and the Supreme Court involve a land dispute), an allegation of “false allegation” motivated by “extraneous reasons” to borrow from Mahajan, are consistently raised. It is undoubtedly important to grant anticipatory bail in cases where it is evident that the case filed involves baseless allegations. However, it is equally important to note the difference between a case filed due to a land issues, that leads to a verbal abuse on caste lines and a case filed against the accused due to hostilities emerging from a property dispute. The mere existence of an extraneous reason that leads to the offence alleged, cannot lead to an immediate grant of anticipatory bail if the extraneous reason mentioned, is the cause of, or is likely to be the cause of the alleged offence. 

Thus, both the detailed inquiry into the ingredients of the offence and the high bar set out to satisfy each given the judicial approach, results in an increasing grant of anticipatory bail in contrast to what the intent of Section 18 originally was. 

Conclusion

Most recently, the Chhattisgarh High Court observed that when the offence alleged under the SC/ST Act appears to be “a misuse of law”, the court can grant anticipatory bail. But as explained, what exactly constitutes a “misuse of law”, and what are the considerations courts must undertake to grant anticipatory bail is an area that needs clarification. In its absence, investigations continue to be hampered with the inability to arrest the accused for serious offences, the burden of which ultimately falls on victims who are meant to be protected by the Atrocities Act.