Analysis of Bail provisions under CRPC, SC/ST Act, NDPS and UAPA




This post has been written by Sukhleen Kaur Saluja a 1st year Law Student from Amity University, Chhattisgarh


The term “Bail” and “Anticipatory Bail” are widely used in Criminal Law. Bail is a term not defined under CRPC. Its provision is found in Section 436 and 437. Bail is the temporary release of an accused awaiting trial, sometimes the money is lodged to guarantee their appearance in court.  Bail is granted to accused by any Judicial Magistrate or Court. Anticipatory Bail is pre- legal process which happens before arrest. It is only issued by session court and High Court. Its provision is found in Section 438 of CRPC 1973.If the Anticipatory Bail application is rejected by the Session Court, the accused can then approach High Court and thereafter Supreme Court. Anticipatory Bail is supposed to be a safeguard for an individual who has false accusation made against him/her.


The provision of Anticipatory Bail under Section 438 was introduced when Crpc was amended in 1973. As per Section 438 of CRPC a person may get Anticipatory Bail on following:

  1. When a person have reason to believe that he may asserted on accusation of having commitment of non-bailable offence.
  2. In such case he may apply High Court or Session Court for a direction.
  3. If courts think it to be fit, direct in the event of such arrest, he shall release on Bail.

Some grounds on which Anticipatory Bail can be cancelled:

  1. When the person on Bail is found tampering with the evidence either during investigation or during trial
  2. When High Court found that there is a wrong exercise of judicial discretion to grant the accused Bail.
  3. If the life of an accused is itself in danger.
  4. The anticipatory Bail can itself be cancelled before the regular bail is actually granted.
  5. When the person on bail creates serious law and order problem in the society and he had become a hazard on the peaceful living of the people.

Section 438 is a procedural provision concerned with personal liberty of each individual who is entitled to the presumption of innocence. In case 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five judge Supreme Court Bench led by then Chief Justice YV Chandrachud ruled that Section 438(1) is to be interpreted in light of Article 21 of the Constitution of the Constitution (protection of personal life and liberty)


In case of Amiya Kumar Sen vs State of West Bengal, it was held that section 438 of the code empowers both High Court and the Session Court to grant the anticipatory Bail. Both the court (High Court and the Session court) have the competency to grant this Bail but the petitioner can choose one of the two courts and can apply to the court of his choice but if the Session Court rejects the petition filed by the applicant for the anticipatory bail, he can’t fill the petition in High Court for the same.

IN Case of D.R Naik Vs State of Maharashtra, it was held if a person files an application for anticipatory bail and is rejected by session court; it will not put the bar over the person filing the petition to approach High Court. But if the person first approaches the high court and petition filed by him gets rejected, then he can’t approach the session court for filing the petition on same ground.


SC RULE, Anticipatory bail u/s 438 Crpc has no application in SC but there bis an exception. Supreme Court has observed in one of its judgment has held  that provision of Section 438 of Code of Criminal Procedure shall not apply to the cases under Schedule caste and Schedule Tribe, except when the complaint doesn’t make out of a Prima facie case for applicability of the provision of the Act. I cases where prima facie case is not made out, the bar created by section 18 and 18A (i) of Act excluding provisions of Section 438 of the Code of Criminal procedure (Anticipatory bail) Procedure) shall not apply. It thus so upheld the constitutionality of Section 18A of the SC/ST Act, inserted vide an amendment in 2018.

ET, Gehlot said, in 2018, we had brought about amendments in the SC/ST Act, which clearly says that there would be no provision of anticipatory bail. The amendment has been passed by Parliament.

The judgment passed in a case titled Prathvi Raj Chauhan V Union of India and ORS.


Also Read:  The Vikas Jatav case and exisiting Caste-based Discrimination.

Bail in NDPS Act. Section 37 says that no person accused of an offence punishable for offence under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond.

In case of Mathew Vs State of Kerala, Kerala High Court observed that Section 37 of the NDPS Act mentions the expression “Non-Bailable, but it cannot be said that all offences under Act is Bailable. In the body of Section 37, there is nothing that declares of offences under the Narcotic Drugs and Psychotropic Substance Act to be non-bailable.

Bail under Section 37 of the NDPS Act can be granted only in cases where there is no Prima Facie case. The Hon’ble Jammu and Kashmir court was of the view that sheer anchor of section 37 of NDPS Act seems to be that bail could be granted only in case where there was no Prima Facie case against the accused. In the case of Nazir Ahmed Wani V state of Jammu and Kashmir, Jammu court observed that the basis for framing charge obviously was satisfaction of court prima facie existed against accused so the bail matter was rejected by the trial court because it had in the first breathe laid down that there did exist prima facie material for such a charge.

Grant of bail on the ground of not forwarding the accused to the nearest judicial magistrate within 24 hours. In the matter of Suaibo Ibow cassarna Vs Union of India and State of Maharashtra, Bombay High court was of view that non-production of accused within 24 hours of his arrest was clear violation of fundamental rights guaranteed under the Article 21 and Article 22 of Constitution of India, the petitioners were entitled to bail.

Many a case under NDPS Act which would otherwise in rejection of the application for Bail by virtue of the Provision of Section 37 of NDPS Act would have to end in grant of bail if there is violation of Article 21 and 22 of Constitution.


Under crpc a police must have warrant to arrest the person for non-cognizable offence but the offences under UAPA are seen cognizable offences, hence police can conduct search and seziure operation without a warrant from magistrate and as person general rule bail id granted in most of the offences but in UAPA under Section 43 D (5), a magistrate can refuse to grant Bail to an accused person if the magistrate is of the opinion that the charges against the person are true. The person arrested in UAPA cases cannot seek for Anticipatory Bail as well and as per Article 22 and provision of Crpc the person arrested has to be produced before a magistrate within 24 hours of the arrest but this rule however does not apply in the case of UAPA and a person can be detained for 30 days without being produced before the magistrate and if require then they can be kept in judicial custody for 90 days or even more if required.

Bail- if case diary and other materials disclose  Prima Facie case then the Bar under Proviso to Section 43 D(5) of UAPA will be attracted: Chhattisgarh HC, High Court of Chhattisgarh mentions in case of Abhya Nayak V State of Chhattisgarh held quite explicitly that on reading the case diary or any other material placed on record, if Prima Facie case is made out against accused, then the proviso to Section 43D(5) of Unlawful Activities Act,1967 will get attracted and the accused shall not be enlarge on bail.


So I conclude that the concept of bail is that it acts as a security lodged by the accused person on the basis of which he can be released on temporary basis but needs to appear in court whenever required by courts. But bail can only be granted if the magistrate is of opinion that charges against the person are true as per UAPA Act, and as in CRPC as per Article 22 the person should be produced in trial within 24 hours but this not same in UAPA Act they can keep the accused even for 90 days if required. So, there are different provisions for different acts for bail and Anticipatory bail.

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