Introduction
The doctrine of bail holds a central place in Indian criminal jurisprudence because it represents a constitutional as well as procedural mechanism through which personal liberty is protected in a pending trial, however, the same is subject to conditions stipulated in Criminal Procedure Code, 1973 (“CrPC”). CrPC has equipped the Indian courts with the power to grant anticipatory bail (Section 438) and/or regular bail (Sections 437 and 439) and this power is neither unbounded nor mechanical. In special statutes such as the Protection of Children from Sexual Offences Act, 2012 (“POCSO”), and the Narcotic Drugs & Psychotropic Substances Act, 1985 (“NDPS Act”) as well as in cases of economic crime, courts calibrate this discretion with statute-specific constraints and heightened judicial vigilance.
This blog analyses the legal framework of anticipatory and regular bail in the aforesaid four domains. For each domain, we will examine the statutory restrictions, jurisprudential evolution, landmark decisions, and practical principles. The aim of this blog is to equip the legal professionals and legal students with a rigorous, jurisprudentially, grounded understanding of bail in these high-stakes and complex areas.
Economic Offences
Statutory framework
Economic offences / white-collar crimes such as fraud, embezzlement, company scams, bank defaults are often aggravated by the complexity of conspiracy, multiple actors, and high public stakes. Hence, all these factors have compelled the Hon’ble Supreme Court to recognize the economic offences as “class apart” for justifying a stricter bail regime.
Where a special statute, for e.g. Companies Act, 2013 intervenes, it may prescribe “twin conditions” or procedural fetters on judicial bail power so that the individual who has committed such economic offences are dealt with iron hand. For instance, Section 212(6)(ii) of the Companies Act, 2013 mandates that before granting bail, the court must hear the public prosecutor and be satisfied that (a) there exist reasonable grounds to believe that the accused is not guilty, and (b) that he is not likely to commit an offence while on bail.
Thus, the courts have to follow a stringent procedure while granting bail to an individual in the economic offences.
Anticipatory Bail
It is to be noted that anticipatory bail, under Section 438 CrPC, is an extraordinary remedy and can be exercised in a very few exceptional instances. Generally, in the context of economic offences, courts are reticent to grant it. In the recent Serious Fraud Investigation Office v. Aditya Sarda, 2023 INSC 969, the Hon’ble Supreme Court set aside anticipatory bail orders in a large cooperative credit fraud case and held that:
“When the accused repeatedly evade warrants, conceal themselves, or obstruct execution of process, they cannot be entitled to anticipatory bail except in extreme, exceptional cases.”
In another judgement delivered by the Hon’ble Supreme Court in the case titled as P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791 it was reaffirmed that the economic offences having deep-rooted conspiracies and large public fund loss, must be scrutinised carefully, and cannot be extended as a privilege.
Thus, even in the circumstances where anticipatory bail is legally permissible, courts frequently decline the same, on grounds mentioned below:
- evasion of process or proclamation proceedings,
- risk of tampering with evidence or witnesses,
- gravity and complexity of financial crime, and;
- lack of full disclosure of materials by the applicant.
Regular Bail
Once arrested, an accused moves for regular bail under Sections 437 or 439 CrPC. In such cases, courts thoroughly analyse the seriousness of charges levelled against the accused, strength of evidence presented before them, antecedents and chances of flight risk before granting regular bail. It is pertinent to mention that, while granting the regular bail, the courts impose stricter conditions such as stringent bonds, regular reporting to police or court, and restrictions on disposal of assets or travel etc, given the high-stakes nature of financial crime.
Moreover, as stated above, where special statute is involved then the courts must follow the sections of that special statute. In Nittin Johari v. SFIO, the Hon’ble Delhi High Court clarified how Section 212(6) Companies Act interacts with CrPC bail powers in evaluating normal bail .
Hence it is safe to state that in economic offences, anticipatory bail is the exception, not the norm, and regular bail is granted only with strict safeguards.
Bail under POCSO
Statutory Framework
The POCSO Act, 2012 is a special statute that addresses sexual crimes against children who are less than 18 years of age. Under Section 42, all offences under POCSO are cognizable and non-bailable. Therefore, in POCSO Act, bail is not a matter of right and the courts must exercise discretion under CrPC principles. The Act does not explicitly bar anticipatory bail for adults, but the non-bailable label enforces strict judicial caution.
If the accused is a minor, Section 12(1) of Juvenile Justice (Care & Protection) Act, 2015 mandates that a person under 18 “shall… be released on bail” unless the release would expose them to danger or defeat justice[6]. In other words, a juvenile accused even under POCSO is presumptively entitled to bail under Juvenile Justice (Care & Protection) Act, 2015, notwithstanding the non-bailable POCSO classification.
Anticipatory Bail
Although POCSO offences are treated with severity, Indian courts have not uniformly blocked anticipatory bail for adult accused. The jurisprudence is evolving. For instance, courts have granted pre-arrest relief in POCSO complaints where there was significant delay, or where the complainant’s version was inconsistent.
One such relevant case is of Attorney General for India v. Satish, 2021 INSC 762 (SC) where the Hon’ble Supreme Court held that sexual intent is a core ingredient under POCSO offences, and “skin-to-skin” contact is not necessary for establishing sexual assault under the Act. In this particular case the Hon’ble Apex Court did not directly deal with bail, however, set a precedent for the lower courts to examine the quality of complaint evidence in bail applications, particularly anticipatory ones.
Moreover, the Hon’ble High Courts vide several orders in 2025, have granted anticipatory bail in POCSO cases after assessing age disparity, delay, and complainant conduct.
Thus, anticipatory bail in POCSO is not impossible but remains exceptional as the courts must carefully assess the seriousness of the charges, age, intent, evidences etc.
Regular Bail
Accused may seek bail under Section 439 CrPC before the Special Court or the Hon’ble High Court and the factors for granting the bail remain the same; nature and gravity of offence, strength of evidence, antecedents, likelihood of tampering/witness influence, and flight risk. However, the courts also analyse additional child-centric safeguards such as, contact with the child, harassment or intimidation.
In all practicality, in serious POCSO allegations (penetrative sexual assault, aggravated assault), courts often deny bail unless the record is manifestly weak or the case is clearly false. In more marginal cases, courts have granted bail on strict conditions where the accused is not at flight risk and the accused is cooperative.
Thus, POCSO’s bail jurisprudence strikes a careful balance between protecting the child victim’s rights and the rights of the in manifestly weak cases.
Bail under the NDPS Act
Statutory framework: Section 37
The NDPS Act, 1985 regulates narcotic drugs and psychotropic substances. Section 37 contains the bail embargo: it states that notwithstanding anything in the CrPC, no person shall be released on bail or bond if the Public Prosecutor opposes it, unless the court is satisfied of two cumulative conditions:
- There are reasonable grounds to believe that the accused is not guilty of the offence, and
- The accused is not likely to commit any offence while on bail.
Section 37 places a reverse onus on the accused and the same can be categorised as a distinct condition from ordinary bail law. Pertinently, this applies to both anticipatory and regular bail when the prosecution opposes. In all practicality, once Section 37 applies, anticipatory bail is rarely granted. The Hon’ble Supreme Court in Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305 observed that anticipatory bail in NDPS matters must be granted only in the “rarest of rare” circumstances due to the statutory embargo.
In Union of India v. Md. Nawaz Khan, (2021) 10 SCC 100, the Hon’ble Supreme Court reaffirmed that in NDPS cases involving commercial quantity, the court must satisfy itself of the twin conditions before granting bail, and the conditions are cumulative, not alternative.
Anticipatory Bail
Given the statutory architecture, courts seldom grant anticipatory bail in NDPS matters. The mandatory twin conditions act as a bar. Any anticipatory relief granted without fulfilling those twin conditions is often set aside as legally impermissible.
Regular Bail
In a post-arrest scenario, an accused moves a bail application under Section 37 (if prosecution opposes). The court must meet the twin conditions on record and not by speculative view. The Hon’ble Supreme Court in the 2024 INSC 537 decision observed:
“The recording of finding as mandated in Section 37 is a sine qua non for granting bail … the conditions … are cumulative and not alternative.”
However, the twin conditions under section 37 cannot justify the inordinate delay in conducting the trial. It is to be noted that Hon’ble Punjab & Haryana High Court emphasized that undue delay in trial if not attributable to the accused can justify bail even in NDPS commercial quantity cases and held that:
“The right to life and personal liberty cannot be rendered nugatory by unwarranted delays … An individual cannot be kept behind bars for an inordinate period of time by taking refuge in the rigours of Section 37.”
Thus, while NDPS bail doctrine is strict, courts have carved a narrow exception for inordinate, unexplained delay. However, anticipatory bail is virtually out of reach, and regular bail is subject to the twin-conditions test, barring exceptional delay or constitutional considerations.
Judicial Precedents
The Hon’ble Supreme Court over a period of time has pronounced catena of landmark judgements pertaining to procedural as well as theoretical aspects of bail. A few are as follows-
The Hon’ble Supreme Court in the cases such as Hussainara Khatoon v. State of Bihar (1980) and Maneka Gandhi v. Union of India (1978) has held that liberty is the norm and detention is an exception. The right to personal liberty and the requirement of a fair trial are essential elements of Article 21 of the Constitution.
In Gurbaksh Singh Sibbia v. State of Punjab (1980), a Constitution Bench of the Hon’ble Supreme Court elaborated the ambit of Section 438 CrPC and underscored that anticipatory bail is not a matter of right but a judicial discretion to be exercised with caution while respecting the presumption of innocence.
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Hon’ble Supreme Court held that arrest should be the exception, particularly for offences punishable with <7 years; police must record reasons before arrest under Section 41 CrPC. This judgment indirectly reinforces that courts must scrutinize necessity of detention before granting bail.
In bail adjudication, Sanjay Chandra v. CBI (2012) 1 SCC 40 remains a guidepost as the Hon’ble Supreme Court has laid down some essential factors, and the same are as follows-:
“Nature and gravity of the accusation, the severity of the punishment, the character, antecedents and behaviour of the accused, the possibility of his absconding or tampering with evidence or influencing witnesses …”
These factors are common to both anticipatory and regular bail. The courts must tailor them to the facts and ensure that the bail regime does not become an instrument for obstruction of trial.
Conclusion
This blog has traversed the complex terrain of bail jurisprudence in four critical domains which are: economic offences, POCSO, NDPS, and overarching general bail principles with emphasis on both anticipatory and regular bail.
- In economic offences, because of the magnitude, conspiracy and public interest, courts treat such crimes as a “class apart,” and accordingly deny anticipatory bail barring exceptional cases, while granting regular bail only under strict conditions.
- Under POCSO, though all offences are designated as non-bailable, anticipatory bail may occasionally be granted in exceptional fact patterns, but regular bails are guardedly granted, owing to the sensitivity of child victims.
- In the NDPS Act regime, Section 37 imposes a near-absolute bar on bail: anticipatory relief is virtually unavailable, and regular bail requires the accused to satisfy the twin mandatory conditions unless there is an inordinate delay in the trail.
- Across all these domains, the general principles of Sections 438, 437, 439 CrPC and the constitutional right to liberty guide judicial discretion. Courts must weigh statute-specific strictures alongside the core principles of tripartite assessment: gravity of offence, risk of obstruction or flight, and strength of prima facie case.
Therefore, it is safe to state that bail is not a right but a regulated privilege, especially in special statutes, yet, personal liberty remains constitutionally sacrosanct; courts must not turn bail into a tool of injustice or delay. In all four areas, the judiciary’s challenge is to calibrate that fine balance ensuring the accused is not unduly deprived of liberty, while preserving integrity of criminal justice for society.
Authored: Namanveer Singh Sodhi, Associate
Co authored: Aanchal Rajput, Intern
This content is originally posted on https://www.maheshwariandco.com/blog/anticipatory-bail-in-india/
