Anticipatory Bail- All you need to know!

The Author, Angela Arora, is a Law student at University School of Law and Legal Studies, GGSIPU, New Delhi.

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”- Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977).

Section 438 of The Code of Criminal Procedure, 1973, makes a provision enabling superior courts to grant anticipatory bail, i.e., direction to release a person on bail issued even before the person is arrested.

History of anticipatory bail in India

In the post-Emergency period, a need for the introduction of a new provision in the CrPc authorizing High Court and Court of Sessions to grant ‘anticipatory bail’ was pointed out by the Law Commission in its 41^st Report, released in 1969. It was observed in the report that there was a need to make the provision of anticipatory bail available to the people as there was a possibility, that powerful people may try to implicate their rivals in fake cases, which was a concern of growing importance in light of accentuating political rivalries. It was also felt that there was no basis to require a person accused of an offence to submit to custody, stay in prison and apply for bail in cases where there were sufficient reasons for holding that the accused person was not likely to misuse his liberty on bail and abscond. The Law Commission recommended conferring this power only to the High Court and Court of Session and it also stated that such order would come into force at the time of arrest or subsequently. The Commission observed its inability to exhaustively lay down the conditions under which anticipatory bail could be granted and left it to the discretion of the court. However, it clarified that while granting anticipatory bail, no such observation that was likely to prejudice fair trial ought to be made. The provision was added by the Parliament to CrPc in 1973.

Section 438, The Code of Criminal Procedure

The phrase ‘anticipatory bail’ is not found in Section 438 or its marginal note. This phrase is a misnomer as it is not bail presently granted in the anticipation of arrest. When the Court grants ‘anticipatory bail’ what it does is to make an order, that in the event of an arrest, the person will be released on bail.

That being said, it is understood that there is no question of release on bail until a person is arrested. In Balchand Jain v. State of M.P. (1976), it was held that only on arrest that the order of anticipatory bail becomes operative.

The distinction between an ordinary order of bail and an order of ‘anticipatory bail’ is, whereas the former is granted after arrest, and means the release from police or magistrate’s custody, the latter is granted in anticipation of arrest, and is effective at the very moment of arrest (as held in Gurbaksh Singh Sibbia v. State of Punjab (1980)).

Who can grant anticipatory bail?

According to S. 438(i), an application for anticipatory bail can be made either to the Court of Sessions, or to the High Court. If the application for anticipatory bail filed in the Court of Session is rejected, the applicant may approach the High Court for the same (Jagannath v. State of Maharashtra (1981)).

When can be anticipatory bail granted?

Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into consideration the following factors, namely:

1. the nature and gravity of the accusation.
2. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
3. the possibility of the applicant to flee from justice.
4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

 Where the High court or court of session grants interim bail to the applicant then the court forthwith a show cause notice attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

There is no question of anticipatory bail after arrest, and anticipatory bail is effective till the conclusion of the trial.

Conditions for obtaining anticipatory bail

The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including:

1. a condition that the person shall make himself available for interrogation by the police officer as and when required;
2. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
3. a condition that the person shall not leave India without the previous permission of the court.

Anticipatory bail in absence of S. 438

In Hema Mishra v State of U.P. (2014), , it was held by the Supreme Court that in case of inapplicability of Section 438 CrPc in a particular state, the accused can approach the High Court under Article 226 of the Constitution for grant of relief of anticipatory bail.

Leading case laws on anticipatory bail in India

A number of landmark cases have helped shape the discourse and form the jurisprudence of anticipatory bail in India, some of which are discussed below:

1. Gurbaksh Singh Sibbia v. State of Punjab (1980): This case is considered a landmark judgment that extensively discussed anticipatory bail provisions under Section 438 of the Criminal Procedure Code (CrPC). The Supreme Court held that anticipatory bail is a pre-arrest legal process to secure liberty and dignity of individuals. It laid down important principles and guidelines for granting anticipatory bail.
2. Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996): In this case, the Supreme Court clarified that the power to grant anticipatory bail should be exercised cautiously and judiciously. It emphasized that anticipatory bail cannot be granted as a matter of right and should be granted only in exceptional cases where the accused apprehends arrest due to false accusations.
3. Siddharam Satlingappa Mhetre v. State of Maharashtra (2011): The Supreme Court reiterated the importance of anticipatory bail as a means to protect the innocent from harassment. It emphasized that anticipatory bail should not be refused merely on the ground that the allegations are of a grave nature, but should be decided based on the merits of each case.
4. Sushila Aggarwal v. State of NCT Delhi (2020): While not directly related to anticipatory bail, this case reaffirmed the principles of fair trial and the right against self-incrimination. It emphasized the presumption of innocence and the need to protect the rights of the accused, which indirectly influences the approach towards granting anticipatory bail.
5. Amaravathi v. State of Andhra Pradesh (2004): In this case, the Supreme Court held that anticipatory bail cannot be granted with conditions that amount to interference with the investigation. It emphasized that the conditions imposed on anticipatory bail should not restrict the investigation process.

Conclusion

The subsequent evolution of anticipatory bail within Section 438 of The Code of Criminal Procedure, 1973, elucidates its nuanced function, distinct from conventional bail mechanisms. It operates as a pre-emptive safeguard, offering protection against unwarranted arrest and ensuring the preservation of individual liberty.

However, as evidenced by landmark judicial pronouncements, the grant of anticipatory bail is not a matter of course but a judicious exercise of discretion. Courts have articulated stringent criteria, emphasizing the need for compelling circumstances and adherence to principles of fairness and equity.

Moreover, the jurisprudential journey surrounding anticipatory bail underscores its pivotal role in upholding the rights of the accused while balancing the imperatives of justice and societal welfare. From seminal cases delineating its scope and application to safeguards against abuse, the jurisprudence surrounding anticipatory bail reflects a dynamic dialogue between legal principles and social exigencies.