Prologue:
Anticipatory bail, AKA "pre-arrest bail" is a statutory provision that enables a person with a reasonable apprehension of fear that such person could be arrested, based on an FIR which the person on whom the FIR was filed, ought to be fabricated, can move to the law court, so an order of anticipatory bail gets granted by the Hon'ble Court to prevent such arrest to pursue further.

The primary idea to enable such provision is to protect the Right to Personal Liberty which would be vandalized in case of unreasonable arbitrary arrest. Such rights have been secured under Article 21 of the Indian Constitution.

The apex court in its recent judgment in Dhanraj Aswani vs Amar S. Mulchandani & Anr.[1] enlarged the scope of anticipatory bail by adding a substantive method to grant anticipatory bail to a person who is already in custody, if such person is apprehending arrest in another FIR. This judgment has provoked various questions under the purview of law and indeed induced this article too. Hence this article will discuss the principle of anticipatory bail and its expansion following the rapid growth of modern criminal jurisprudence.

Development of "Pre-arrest" Bail:

The original document, the Criminal Procedural Code of 1898, did not hold any provision envisaging Anticipatory Bail until the 41st report of the Law Commission of India advocated the necessity of such a provision to be introduced. The report prescribed the need for a substantive law to prevent an individual from facing disgrace and ignominy when influential people try to implicate their rivals in false cases.

This fundamental idea developed as an altruistic principle to add Section 483 to the Criminal Procedural Code in 1973, which makes the significance of individual freedom and liberty in a free and democratic nation very clear. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.[2] it was observed that a careful reading of Section 438 would reveal that the legislature was keen to ensure respect for the personal liberty of individuals by pressing in service the age-old principle that an individual is presumed to be innocent till he is found guilty by a court of law.

Evolution of the Hypothesis:

The concept of pre-arrest bail is so primordial under the context of the original version of the criminal procedural code of 1898. It is fully reflected in the judgment Amir Chand vs The Crown[3] in which the East Punjab High Court observed that the very notion of bail presupposes some form of previous restraint and denied bail to a person who has not been arrested and for whose arrest no warrants have been issued.

It further stated that no bail can be allowed to a person at liberty for whose arrest if no warrant has been issued. This primitiveness induced the need for the introduction of a new provision in the procedural code empowering the courts to grant a pre-arrest bail.

This legal need was first pointed out by the 41st Law Commission of India in its report dated September 24, 1969.

The Law Commission, in its 48th report, made the following comments:

"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised."[4]

In response, the parliament incorporated section 438 in the Criminal procedural code by an amendment in the year 1973, which conferred power to the High Courts & Sessions court to grant anticipatory bail.

Following this, the Indian law courts have delivered numerous significant rulings that have shaped the legislation concerning anticipatory bail. In which Gurbaksh Singh Sibbia vs State of Punjab[5] stands tall as a landmark judgment, as it lays down the following principles of law as regards the grant of anticipatory bail:

• The applicant must genuinely show the "reason to believe" that he may be arrested for a non-bailable offense. Mere fear of arrest is not belief and the grounds on which the belief of the applicant is based must be capable of being examined by the Court objectively.
   
• The complete responsibility to keep the question of granting anticipatory bail lies within the High Court or the Sessions Court and it should not be left to the discretion of the Magistrate under section 437 of the procedural code.
   
• Filing the FIR is not a prerequisite. However, the imminence of a likely arrest founded on reasonable belief must be shown.
   
• The purview of the anticipatory bail is valid only till the applicant is arrested in connection with the offense.

These observations were not absolute ab initio, as the succeeding judgments curtailed the findings' scope. But later Siddharam Satlingappa Mhetre vs State of Maharashtra [6]changed the course. The two-judge bench held that the intervening decisions between 1980 and 2011 curtailing the scope of Gurbaksh Singh Sibbia [7] were per incuriam.

Later in Sushila Aggarwal vs State (NCT of Delhi)[8], the apex court further expanded the scope of anticipatory bail by laying down the following principles:

• Concrete fact that the applicant is under the purview of arrest should be established. Mere fear of arrest should not be considered.
• Advised that the notice of an Anticipatory bail should be forwarded to the Public Prosecutor.
• After the chargesheet is filed, anticipatory bail may be granted for the duration of the trial, contingent on the accused's actions and demeanor.
• The validity of a bail order may be examined by the Supreme or appellate courts.

Hence, a mere reading of these facts can make us understand that, since its inception in 1973, the notion of anticipatory bail has undergone various changes through judgments and revisions. Similarly in the year 2024, the apex court passed a crucial observation in the judgment Dhanraj Aswani vs Amar S. Mulchandani & Anr.[9] which has changed the due course of the regulations in anticipatory bail law.

Judicial Precedent:
Indian judicature has been seen in certain instances, in which the applicant, who is already in custody, applies for an Anticipatory Bail based on apprehending arrest in a different case. The surprising part is that various High Courts across India have observed different opinions in this matter.

In Sunil Kallani vs State of Rajasthan[10], the Rajasthan High Court adopted a line of reasoning. It stated that the word arrest itself defines a touch or arrest of a corpus (section 46 of CrPC) and continued that a person who is already in custody cannot be believed to have a reasonable apprehension of the arrest.

It was further observed that "an anticipatory bail application under Section 438 Cr.P.C. would not lie and would be nothing but a travesty of justice in allowing anticipatory bail to such an accused who is already in custody." The High Court of Allahabad followed a similar observation while deciding the case Rajesh Kumar Sharma vs Central Bureau of Investigation.[11]

Furthermore, the Delhi High Court, while deciding the case Bashir Hasan Siddiqui vs The State (GNCTD)[12], took a similar observation by stating "since the accused is in custody in another FIR, the anticipatory bail in other FIR is not maintainable" and decided to dismiss the anticipatory bail petition.

The contradiction arose when the Bombay High Court in Alnesh Akil Somji v. State of Maharashtra [13]observed that:
"what has not been said cannot be inferred unless the provision itself gives room for speculation" which precisely means that nothing in the criminal procedural code obstructs a person who is in custody to opt for an anticipatory bail. The High Court of Orissa took a corresponding view in Sanjay Kumar Sarangi vs. State of Odisha. [14] and further observed that the Anticipatory bail provision acts at a future time.

If an accused, after being released in a former case, if is sought to be arrested in the subsequent case, there is no reason that he should be precluded from approaching the court seeking necessary protection. The court further explained that the grant of anticipatory bail does not immune the accused to avoid any further investigation.

Thus, from the above argumentation, the conflict arises due to divergent observations by various High Courts. The Rajasthan, Delhi & Allahabad High Courts submit that an anticipatory bail application would not be maintainable if the accused is already arrested and in custody for some offense, meanwhile, the Bombay & Orissa High Courts have contrarily held that anticipatory bail application at his instance in connection with a different case is maintainable.

Apex court's resolution to the enigma:
The obligation to resolve this legal disputation lay with the apex court while deciding the case Dhanraj Aswani vs Amar S. Mulchandani & Anr. in which the supreme court has to rule a decisive judgment to an Anticipatory bail application, in which the applicant is already in a custody.

The Supreme Court initially dealt with a contention that two simultaneous arrests would not compound the humiliation and the agony to the arrestee. The apex court observed that subsequent arrest underscores a continued or escalating involvement in legal troubles that can erode the dignity of the person and their public standing. The subsequent arrest will intensify the emotional burden and augment the perception of outlawry in society.

The court further noted that due to no legal provision that substantively precludes an accused from applying for anticipatory bail about an offense while he is in custody for a different offense.

"While a person already in custody in connection with a particular offense apprehends arrest in a different offense, then, the subsequent offense is a separate offense for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offense are independently protected" the court continued.

Furthermore, in A.R. Antulay v. R. S. Nayak [15] the Supreme Court observed that an individual cannot be denied of his right under the constitution and the laws and stated that one has a right to be dealt with in accordance with the law, and not in the derogation of it. Subsequently, the apex court held that a denial of equal protection of laws, by being singled out for a special procedure not provided under the law, caused a denial of rights under Article 14 of the Constitution of India.

Before parting the matter, the Supreme Court looked into the pre-condition for a person to apply for a pre-arrest bail. The only condition is the existence of a reasonable apprehension of arrest. Hence it is quite understandable that custody in one case will not take away the apprehension of arrest in a different case.

Finally, the supreme court given the aforesaid observation, held that the anticipatory bail petition filed by a person who is already in custody is maintainable. It further elucidates that each of such applications will have to be decided on the merits of the cases.

Conclusion:
"Presumed innocent until proven guilty" This principle has played a substantive role in Indian jurisprudence and it also paved the way for the formulation of Anticipatory Bail. The above observations have made it clear that such a provision has been expanding its scope to serve the purpose of guaranteeing the constitutional right of protecting an individual's liberty, to which it was originally formulated.

This also implies an integral duty before the courts to exercise this provision efficiently & wisely. Even though it embarks adverse consequences, such a provision cannot be operated rigidly as the future circumstances are not visible. Hence the Courts & Law Lords should imply extra care while dealing with a thin-margin segment of the law.

End Notes:

1. Dhanraj Aswani vs Amar S. Mulchandani & Anr. [2024] 9 S.C.R. 257
2. Siddharam Satlingappa Mhetre vs State of Maharashtra and Others [2010] 15 SCR 201 : (2011) 1 SCC 694
3. Amar Chand vs The Crown reported in 1949 SCC OnLine Punj 20
4. Law Commission of India, 48th report, paragraph 31 (1972)
5. Gurbaksh Singh Sibbia vs State of Punjab [1980] 3 SCR 383, (1980) 2 SCC 565
6. Siddharam Satlingappa Mhetre (Supra)
7. Gurbaksh Singh Sibbia (Supra)
8. Sushila Aggarwal vs State (NCT of Delhi) [1980] 3 SCR 383, (1980) 2 SCC 565
9. Dhanraj Aswani (Supra)
10. Sunila Kallani vs State of Rajasthan 2021 SCC OnLine Raj 1654
11. Rajesh Kumar Sharma vs Central Bureau of Investigation 2022 SCC OnLine All 832
12. Bashir Hasan Siddiqui vs State (2023) SCC OnLine Del 7544
13. Alnesh Akil Somji vs State of Maharashtra 2021 SCC OnLine Bom 5276
14. Sanjay Kumar Sarangi vs State of Odisha 2024 SCC OnLine Ori 1334
15. A.R. Antulay vs. R.S. Nayak (1988) 2 SCC 602