Bail flows from the right to liberty which is the natural right and also the fundamental right of an individual. The provision of anticipatory bail under Section 438 was introduced when Code of Criminal Procedure was amended in 1973. Law Commission of India in its 41st report recommended incorporating a provision for Anticipatory Bail.

The report said, The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days… Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Section 438 Of Cr.P.C.

Section 438(1) of the Code of Criminal Procedure, 1973, reads: When any person has reason to believe that he may be arrested on an 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Section 438 is a procedural provision concerned with personal liberty of each individual. In contrast to ordinary bail, anticipatory bail allows a person to be released on bail even before arrest made. In Gurbaksh Singh Sibbia vs State of Punjab[1], a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

It was observed by the Hon'ble Court:
It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extra-ordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.

Empowerment Of Courts

The High Courts and Court of Sessions (Courts) in India are empowered to make an Order granting anticipatory bail that in the event of arrest. Generally, the applicant has to first approach the Court of Sessions for moving an application for Anticipatory Bail unless special circumstances exist for filing the same in the High Court. The Application for Anticipatory Bail is not maintainable if the Applicant is already arrested for the same accusation or has voluntarily surrendered before the trial court for in respect of the same accusation.

The Applicant is free to approach the Courts within whose jurisdiction he apprehends his arrest. It is irrelevant that the alleged offence has been committed outside the jurisdiction of such Courts. If the Courts do not have territorial jurisdiction it may yet grant Anticipatory Bail for a short term with adequate safeguards for approaching the Court having jurisdiction to entertain such application after considering the facts and circumstances involved therein.

Discretion Of Courts To Grant Anticipatory Bail

Anticipatory Bail is generally exercised sparingly in appropriate cases with due care and caution. A few circumstances under which Anticipatory Bail may be granted are:

1. A special case is made out which would indicate that there are sufficient reasons to believe that the Applicant may be arrested on baseless grounds.
2. The accusations have been made with a dishonest motive or with an intention to cause injury/humiliation to the Applicant and having him so arrested.
3. The allegations against the Applicant are of vague or general nature.
4. The name of accused is not mentioned in the First Information Report
5. The applicant satisfies to the Court granting Anticipatory Bail that he hails from a respectable family, has deep roots in the society and is not likely to abscond or evade the process of the Court or in any way hamper investigation.
6. The Complainant is an influential person as against the accused who is a weak person or if a case is instituted against a political rival.

Refusal Of Anticipatory Bail

A few circumstances under which Anticipatory Bail may be refused are:

1. The possibility of the Applicant to abscond in the event cognizance is taken by the trial court or warrant of arrest has been issued by the trial court.
2. If the prima facie case with which the Applicant has been charged can be made out.
3. The Applicant has previously undergone an imprisonment on conviction in respect of any cognizable offence.
4. Where a case can be made out that the Applicant is capable of influencing investigation to his advantage.
5. When a case for a reasonable claim to secure incriminating material

Factors To Be Considered To Grant Anticipatory Bail

The Hon'ble Supreme Court, has laid out a detailed and exhaustive list of considerations, building on those in Section 438(1), relevant to determining whether to grant anticipatory bail.

They are as follows:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before making the arrest
2. The antecedents of the applicant including the fact as to whether the accused 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. The possibility of the accused's likelihood to repeat similar or other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of high magnitude affecting a large number of people.
7. The court must also clearly comprehend the exact role of the accused in the case. The responsibility on the court increases manifold in those cases in which the accusations have been made u/s 34 and 149 of the IPC.
8. While hearing the pleadings for grant of anticipatory bail, a balance has to be maintained between two factors. Firstly, the courts need to ensure that the grant of anticipatory bail doesn't come at the expense of free, fair and full investigation of the matter at hand. Secondly, the courts must ensure that the accused doesn't undergo harassment, humiliation and unjust detention.
9. The court to consider reasonable apprehension of tampering with the evidences and witnesses or apprehension of threat to the complainant.
10. Utmost seriousness in prosecution shall always be considered and it is only the component of authenticity that must be considered when the question is about granting of bail and in case there does persist some doubt as to the authenticity of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Conditions While Granting Anticipatory Bail

While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2), which are as follows:

1. Accused should available for interrogation by a police officer as and when required;
2. Accused should 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. Accused should not leave India without the previous permission of the Court;
4. Any other condition deem fit by the court.

Some Important Case Laws On Anticipatory Bail

In re Digendra Sarkar[2], it was held that the provision for the anticipatory bail in Section 438 of the Code applies even when there is no First Information Report and no case for commission of a non-bailable offence has been registered against a person.

Therefore, the filing of a First Information Report is not a condition precedent to the application for anticipatory bail and in such a case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session.

In Suresh Vasudeva v. State[3], it was held that S. 438(1) of Cr.P.C. applies only to non-bailable offences.

In Sushila Aggarwal vs Stateon[4], a five-judge Bench of the Supreme Court cleared the confusion over whether the protection given to a person through anticipatory bail should exist for a fixed period. The Supreme Court has held that anticipatory bail should not invariably be limited to a fixed period. But if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Reiterating the law laid down by a Constitution Bench of the Court back in 1980 in the case of Gurbaksh Singh Sibbia and others v. State of Punjab (Sibbia case)[5], the Supreme Court has clarified:
There is nothing in the Code of Criminal Procedure (CrPC) to indicate that the grant of pre-arrest/anticipatory bail should be time-bound.

However, the concerned court has the discretion to impose conditions for the grant of anticipatory bail, including a limited duration of protection, on a case-to-case basis, depending on the stage at which the application for anticipatory bail is moved.

As a normal rule, there should be no such time-limit imposed in granting the pre-arrest protection.

The duration of an anticipatory bail order does not normally end when the accused is summoned by the court. However, it is open to the Court to impose additional restrictions if there are peculiar circumstances warranting the same.

End-Notes:

1. 1980 AIR 1632
2. 1982 CriLJ 2197
3. 1978 Cri LJ 677
4. 2020 SCC OnLine SC 98
5. Supra

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