Anticipatory Bail

Before going in-depth analysis of what is Anticipatory Bail and When can one apply for it and the how part of applying it, let’s see what the section says in verbatim:

Section 438: Direction for grant of Bail to person apprehending arrest:

1. Where any person has 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 that Court may, after taking into consideration, inter-alia, 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; and.
   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;
      Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
      
      1-A. Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days’ notice, together with a copy of such order to be served on 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,
      
      1-B. 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.
2. When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including—
   • a condition that the person shall make himself available for interrogation by a police officer as and when required;
   • 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;
   • a condition that the person shall not leave India without the previous permission of the Court;
   • such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
4. Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code1.

Now, if you are at this sentence, I hope you’ve read the section carefully. Because if you’ve then you would’ve noticed the fact that its not in verbatim. In verbatim means in exactly the same words as were used original. And the section you just read has certain amendments in it. How did we reach here? Here’s how:

A brief history of Anticipatory Bail, its object, Jurisdiction, Previous Judgments, Current Standing and the rationale behind

Under the old Code there was no provision for grant of anticipatory bail. The Law Commission in its 41st Report observed: “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. 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.

Parvinderjit Singh v State (U.T. Chandigarh) AIR 2009 SC 502

Thus, the rationale behind ‘anticipatory bail’ (insurance against police custody) is that individual liberty must not be put in jeopardy on the instance of unscrupulous and irresponsible persons. While granting anticipatory bail the court must strike a balance so that individuals may be protected from unnecessary humiliation and the faith of the public in the administration of justice is not shaken. An order under Sec. 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.

HDFC Bank Ltd. v J. Mannan alias J.M. John Paul AIR 2010 SC 618

The object of Sec. 438 is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant.

Adri Dharan Das v State of W.B. (2005) 4 SCC 303

An interim order restraining arrest, if passed while dealing with an application under Sec. 438 will amount to interference in the Investigation, which cannot, at any rate, be done under Sec. 438.

Before substitution Sections 438(1) read:

“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/ Court of Session for a direction under this section; and that court, if it thinks fit direct that in the event of such arrest, he shall be released on bail.”

Sec. 438 has been amended in 2005 to provide for certain circumstances under which the Court shall exercise its discretion for granting anticipatory bail; in case of an interim bail, the Court is required to give notice to the Public Prosecutor/Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties. Further, the presence of the person seeking anticipatory bail has been made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

The aforesaid amendments have been criticized. The provision relating to anticipatory bail is meant to protect people from arrest on false charges. An application for anticipatory bail does not require a vakalat, and can be filed by the accused from wherever he is. The amendment will allow the Public Prosecutor to ask for the accused to be physically present in court when the application is pending, thus making it easy for the police to intercept and arrest the accused before he reaches court. If the application is rejected, the police can arrest him immediately, thus preventing him from appealing against the decision.

This amendment thus provides an unexpected opportunity and embarrassment to the advocates to bring the alleged accused before the court. The amendment therefore defeats the purpose of the provision, doing away with an important safeguard for the accused person in criminal law. It was with a view to avoid the applicant’s physical presence that the provision for anticipatory bail was made.

Changes brought by Amendment Act of 2018
-Amendment Act of 2018 inserted clause (4) to Section 438. It provides that the provisions of Section 438 shall not be applicable to any person who has been accused of committing an offence under Sections 376(3), 376-AB, 376-DA, 376-DB of the Indian Penal Code.

Jurisdiction- Who can grant Anticipatory Bail & when can it be granted:

The section contemplates two concurrent jurisdictions, viz. the High Court and the Sessions Court (the power under Sec. 438 being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service). It is left to the person to choose either of them. A person after unsuccessfully moving the Sessions Court for anticipatory bail can again approach the High Court for the same purpose and under the same section. But if he moves the High Court first and his application is rejected, he cannot approach the Sessions Court with a similar application.

Chajju Ram v Stateof Haryana, 1978 Cr LJ 608 (P&H)

Thus, it is normally to be presumed that the Sessions Court would be first approached for the grant of anticipatory bail unless an adequate case for not approaching the said court has been made out.

Syed Zafrul Hassan v State AIR 1986 Pat 1941

The power to grant anticipatory bail vests only in the Sessions Court/ High Court having jurisdiction over the locale of the commission of the offence of which the person is accused. Neither the place of residence nor the place of the apprehension of arrest give jurisdiction

NKSM Shahul Hameed, 1992 CrLJ 227 (Mad)

Anticipatory bail cannot usually be granted during the pendency of investigation. Where a previous petition for such bail was dismissed, unless there is substantial change in situation or discovery of new incriminating facts, anticipatory bail should not be granted
 

Nirbhay Singh v State, 1995 CRLJ 3317 (M.P.) (FB)

Application for anticipatory bail would be maintainable even after the Magistrate issued process under Sec. 204 or at the stage of committal of the case to the Sessions Court or even at a subsequent stage (viz, after issue of a non-bailable arrest warrant).

Suresh Vasudeva v State, 1978 Cr LJ 677 (Del)

Though Sec. 438 applies only to a non-bailable offence, it is not essential that the offence must also be a cognizable one.

Conditional order:

Section 438(2) provides that Court may include such conditions in the order as it may think fit in the light of facts and circumstances of the case. These conditions may include: –
1.  that the person shall make himself available for interrogation by a police officer as and when required;
2.  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. that the person shall not leave India without the previous permission of the court;
4. Such other conditions as may be imposed under Section 437 (3).

Principles with regard to anticipatory bail

Supreme Court in Gurubaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565 laid down following principles in respect of anticipatory bail: –

1. Registration of FIR is not a condition precedent to exercise the power under Section 438;
2. Interim order can be passed without notice to the Public Prosecutor but before passing the final order notice must be given;
3. Order under Section 438 would not affect the right of police to conduct investigation;
4. Where a case has been made for remand under Section 167(2) or reasonable claim to secure incriminating material under section 27 of the Evidence Act, the power under Section 438 should not be exercised;
5. Blanket order of anticipatory bail should not be made.

Sushila Aggarwal (2020) Case Judgment:

• There is nothing in Criminal Procedure Code that indicates the grant of anticipatory Bail should be time-bound.
  • However, under Criminal Procedure Code, it is discretionary power of the Court to decide on a case-to-case basis (depending upon the stage at which the Bail application has moved or prevalence of any peculiar circumstances necessitating to limit the tenure) and impose a time limit while granting pre-arrest Bail.
  • Also, this duration primarily does not end after first summoning by the Court and can continue till the end of the trial period.
• If any Court wants to limit the Bail, it can attach special features or circumstances warranting the same.
  • The Court while granting anticipatory Bail, should examine the seriousness and gravity of the offence (like nature of the crime, material placed on records, etc.) to impose any condition on the petitioner, if necessary.
  • The police can reach the Court seeking permission for arrest in case of breach of such imposed conditions.
• Application for anticipatory Bail could be filed by a person before the FIR (First Information Report) as soon as the facts make clear there is a substantial reason for the arrest.
• Appellate jurisdiction to check the correctness of the granted Bail lies with the superior Court on the request of the investigating agency or the State.

The Court remarked that “when Parliament has not thought it appropriate to curtail the rights of the citizens and the power of Courts in granting anticipatory Bails, hence, it is not in larger societal interest to curtail such powers & limit the liberty of citizens. The rights of the citizens are fundamental and not the restrictions.”

In relation to the State of Uttar Pradesh, the deletion of the application of Sec. 438 under the State Amendment Act (1976) has been held to be valid. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also excludes the application of Sec. 438 from the cases under this Act. But, recently the provision of anticipatory bail has been reintroduced in U.P. Vide Code of Criminal Procedure (U.P. Amendment) Act, 2018 (U.P. Act No. 4 of 2019; With Effect From 06.07.2019). The following amendments have taken place-

Application of anticipatory bail should be decided within 30 days.[S. 438(5) Cr.P.C.]

Cases in which Anticipatory Bail can’t be given (Sec. 438 (6) – UP Amendment)

(i) Cases of Unlawful Activities (Prevention) Act, 1967;
(ii) Cases of NDPS Act;
(iii) Cases of Official Secrets Act, 1923;
(iv) Cases of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(v) Cases punishable with death sentences

If application has already been made before High Court, then second application before Sessions Court is not maintainable.[S. 438(7) Cr.P.C.]

Cancellation of anticipatory bail
Anticipatory bail can also be cancelled on those principles on which
regular bail is cancelled.

State of Punjab v Raninder Singh, AIR 2008SC 609

it was held that anticipatory bail may be cancelled if the accused does not appear before the investigating officer for interrogation and commits breach of order granting anticipatory bail.