Court can prevent Arrest while dismissing Anticipatory Bail

Even if the High Court is not inclined to grant anticipatory bail while considering the application for anticipatory bail, it can grant protection from arrest for some time, says the Supreme Court (SC) in Nathu Singh and Another v State of UP and Others. Such protection should be bases on consideration of exceptional circumstances such as serving as a care giver or a bread winner so as to make alternate arrangements until they surrender before the trial court.

But such extra ordinary course of action of preventing arrest should not be used in an untrammelled manner. The court must consider the proviso to Section 438 (1) of the Criminal Procedure Code, 1973 (CrPC) and should try to balance the concerns of the investigation, complainant and the society at large.

In this case, while dismissing anticipatory bail, the High Court of Judicature at Allahabad granted 90 days’ time to the accused to surrender before the trial court to seek regular bail and ordered protection of the accused from arrest till then. No reason was given by the High Court in granting the accused protection from arrest. The court should have assigned reasons for providing such a long period.

The SC, while considering this case, held that based on the facts of this case, the period of 90 days is an unreasonably long duration of time. The proviso to Section 438(1) of the CrPC does not create any right or restriction. What it says is that unless an individual has obtained some protection from the court the police have every right to arrest them. The SC added that the proviso does not put any bar on the power of the court to grant and additional protection to the applicant as well.


  1. Nathu Singh and Another v State of UP and Others [ 2021(2) KLD 39 (SC)]