This research paper explores the evolution and significance of anticipatory bail in Indian jurisprudence. The paper further examines various landmark judgements pronounced by the Hon'ble Supreme Court which highlights the pivotal role played by it in preserving the personal liberty and freedom enshrined in Article 21 of the Indian Constitution.

Through an exhaustive examination of legal precedents and legislative intentions, this research emphasizes the ongoing relevance and intricate legal complexities associated with anticipatory bail in modern Indian law. It further underscores the balance made by the judiciary between the imperatives of justice and preserving one's freedom. Hence the legislative intent, evident in parliamentary deliberations and amendments to the Code of the Criminal Procedure,1973, provides more clarity on the underlying rationale for anticipatory bail.

Introduction
"Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any kinds of accusation, likely or unlikely."[1]The term "anticipatory bail" is a provision that allows a person to seek bail on apprehension of arrest and the offence of which he is accused is a non-bailable offence. In Bharat Chaudhary v. State of Bihar[2], the court emphasized that the essence of this provision is to prevent unnecessary harassment of the accused through pre-trial arrest and detention.

In Uttar Pradesh, the concept of anticipatory bail has been removed owing to rampant misuse. Instead, they have come up with the provision of same-day bail. But even this provision is frequently abused, therefore the government should reintroduce the concept of anticipatory bail as was discussed in the case of Som Mittal v. Government of Karnataka.[3]

Historical Evolution and the Legislative Framework
The older code, the Code of Criminal Procedure, of 1898 didn't provide for such a section regarding the provision of anticipatory bail. Subsequently, the need arose for such a provision that resulted in the incorporation of Section 438 in the Code of Criminal Procedure,1973. This term is not expressly mentioned in the Code of Criminal Procedure,1973 and neither has the term been defined here. In the landmark judgement of Balchand Jain v. State of Madhya Pradesh[4], the Hon'ble Court held that anticipatory bail is a misnomer.

It further explained that when the court grants anticipatory bail to a person, it orders that if such a person is arrested later on, he shall be released on bail. Further, the court also stated that such a bail becomes operative only when an arrest is made.

This term was used for the first time in the Law Commission of India in its 41st Report dated 24 September 1969. The report discussed the necessity of such a provision due to instances where individuals falsely implicate their adversaries in cases, aiming to tarnish their reputation and honour. Such a situation became very common then due to the infliction of political rivalry. This objective has also been reiterated in various judgements of the Hon'ble Supreme Court.

This provision is also addressed in section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS,2023). In the BNSS 2023, there's little change in the provision as reflected in Sub-section 4 of Section 482 of BNSS,2023. This states that provisions of this section do not apply to cases where the person arrested is accused of offences mentioned in section 65 and Sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita,2023. This new law prohibits anticipatory bail for those individuals who are accused of gang rape when the victim is under eighteen years of age.

This has enlarged the applicability of the Code of Criminal Procedure,1973 as it restricted the anticipatory bail for those cases where the victim was under sixteen years of age (Section 376DA) or twelve years of age (Section 376DB), as mentioned in Section 438(4) of the Code of Criminal Procedure,1973. This expansion incorporating women under eighteen years marks a notable change in the legal proceedings, signalling the gravity with which the law addresses the cases of gang rape.

According to Section 438 of the Code of Criminal Procedure, 1973, an individual seeking anticipatory bail may apply directly to either the High Court or the Court of Session, as both possess concurrent jurisdiction to grant such relief. When the court comes across such an application, it will examine whether it is reasonable or not to make such an application. If the court concludes that there are actual chances of arrest of such a person, the court will grant him anticipatory bail.

Also, when granting such bail, the court may impose certain conditions to be fulfilled. In case the person violates any of these conditions, bail stands cancelled and he may be arrested further thereof on such cancellation. If the application is rejected by the High Court or the Court of Session, the police officer can arrest a person without having a warrant.

Sub-section (1A) of this section further states that when the court issues an interim order of anticipatory bail, a minimum notice period of seven days will be provided to the Public Prosecutor and the Superintendent of Police. This notice is served to afford a reasonable opportunity of being heard, one of the cardinal principles of natural justice to prepare a defence. Under sub-section (2) of this section, the High Court and the Court of Session are empowered to impose certain conditions while granting the interim anticipatory bail application on the accused.

These conditions may include:

• Requiring the presence of the applicant whenever necessary by the police for interrogation.
• Prohibiting the applicant from threatening, offering inducements, or promises to any person who is acquainted with the facts of the case, including witnesses.
• Restriction on leaving the boundaries of India without prior permission from the Court.
• Imposing any of the conditions mentioned in Section 437(3) of the Code of the Criminal Procedure, 1973.

Sub-section (3) of this section talks about the implications of anticipatory bail. It transforms a non-bailable offence into a bailable offence, requiring that when the person is arrested, he must be granted bail by the police officer, provided the bail conditions are met. Further, in such instances, the Magistrate will issue a bailable warrant.

Precedential Impact on Anticipatory Bail
It is crucial to note that the grant of anticipatory bail is within the discretion of the Hon'ble Court and doesn't constitute an absolute entitlement. In the landmark judgement of Siddharam Satlingappa Mhetre v. State of Maharashtra[5], the Hon'ble Supreme Court held that this provision should be construed in harmony with Article 21 of the Indian Constitution, which guarantees the protection of life and personal liberty.

The filing of an FIR is not a prerequisite for invoking the provisions of Section 438 of the Code of Criminal Procedure. Grant of this interim order doesn't hinder the authority of the police to conduct an investigation. The conditions outlined in Section 437 of the Code of the Criminal Procedure,1973 do not apply to the provisions under Section 438 of the Code of the Criminal Procedure,1973.

It was held in Gurbaksh Singh Sibbia v. State of Punjab[6] that the right to seek anticipatory bail could not be restricted by time. However, the court is empowered to impose restrictions based on the circumstances of each case. After this, a contrary view was adopted in a three-judge bench of the Supreme Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra[7] ruling that anticipatory bail orders should be of a limited time duration.

Upon expiration of such period, it should be left to the regular court on how to handle the matter based on the evidence gathered during the investigation or upon filing the chargesheet. Despite the prima facie error in the Salauddin[8] judgement, the principles articulated in this judgement were adhered to in numerous judgements like K.L. Verma v. State and Anr[9] and Satpal Singh v. the State of Punjab.[10]

The Supreme Court finally settled the ambiguity over the law of anticipatory bail in a five-judge bench judgement - Sushila Agarwal and others v. State (NCT of Delhi)[11]. The court ruled that anticipatory bail should not be subject to a predetermined timeframe. The court in this case further determined that the validity of anticipatory bail doesn't expire when an accused person is summoned or when charges are framed against him; instead, it may extend until the trial is concluded. The Hon'ble Court reaffirmed the principles laid down in the Sibbia case[12].

Conditions and Criteria for Granting and Rejecting the Anticipatory Bail
Grounds for granting Anticipatory Bail

• Nature and gravity of the accusation
• Applicant's prior history and past criminal record
• Probability of evading justice
• Whether the accusation was made to cause humiliation to the applicant and a frivolous case has been launched against the applicant
• Long delay in filing the FIR

• Nature and gravity of the accusation
• Applicant's prior history and past criminal record
• Probability of evading justice
• Whether the accusation was made to cause humiliation to the applicant and a frivolous case has been launched against the applicant
• Long delay in filing the FIR

Grounds for rejection of Anticipatory Bail:

• The applicant is accused of an economic offence[13]
• The accused is a proclaimed offender and absconded.
• The applicant can't use this provision as a blanket for the crimes that have not yet been committed or accusations that have not yet been made.[14]
• The court can't use its discretion in respect to the offences punishable by the death penalty or life imprisonment unless the court is convinced at the nascent stage that the accusations made are false and frivolous.[15]

In the landmark case of Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr.[16], the Supreme Court highlighted factors for the grant of anticipatory bail. These included the nature and seriousness of the alleged offence, the severity of the penalty, the risk of fleeing from justice, tampering with the witnesses, the prima facie basis for the accusation and the risk of justice being subverted.

The court further articulated in the case of Nimmagadda Prasad v. CBI[17] that in granting bail, factors such as the nature of allegations, potential severity of sentence, tampering of witness, character and behaviour of the accused person, and public interest must be taken into account.

The paramount factor in exercising judicial discretion under this provision is to look at the broader interest of the state and society. This principle is supported by the judgement in the State of Maharashtra v. Nainmal Punjaji Shah.[18]

Conclusion
In the landmark case of the State of Rajasthan, Jaipur v. Balchand @Baliay,[19] the Hon'ble Supreme Court established the principle that "bail is the rule and jail is an exception". Anticipatory bail serves as a shield against unjust detention for those wrongfully accused and denial of bail amounts to curtailment of one's freedom. The enactment of this section aims to promote reverence for personal freedom and uphold one of the fundamental principles of criminal jurisprudence: the presumption of innocence until proven guilty.

The Law Commission in its 154th Report has also observed that just because there is some amount of misuse of Section 438 of the Code of the Criminal Procedure,1973, it can't be made the sole ground for its deletion. To prevent this, some restraints can be imposed by the Hon'ble courts at their discretion. The latest IJR analysis notes that "77% of the prison population were awaiting trial in India". Hence, the necessity for provisions such as anticipatory bail remains as crucial today as it was at its inception.

End-Notes:

• Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565
• (2003) 8 SCC 77
• (2008) 3 SCC 574
• (1976) 4 SCC 572
• AIR 2011 SC 312
• ibid 1
• (1996) 1 SCC 667
• Supra
• 1998 (9) SCC 348
• 2018 SCC OnLine SC 414
• (2020) 5 SCC 1
• ibid 1
• Directorate of Enforcement v. Ashok Kumar Jain (1982) 2 SCC 105, P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 63
• ibid 1
• Supra
• (2010) 14 SCC 496
• (2013) 7 SCC 466
• 1970 SCC (cri) 170
• (1977) 4 SCC 308

Award Winning Article Is Written By: Ms.Rashi Singh

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