This article is written by Vedika Goel of OP Jindal Global University, Haryana. This article provides a detailed analysis of Section 438 of CrPC which attempts to protect an accused from the possibility of an arrest for a non-bailable offence.

This article has been published by Sneha Mahawar.

Introduction

Anticipatory or pre-arrest bail, though nowhere explicitly defined in the Criminal Procedure Code of 1973 essentially means providing bail to a person even before its arrest. It forms a critical component of the freedom of the right to life and personal liberty under the Indian Constitution. The term “anticipatory bail” was first coined by the 41st Law Commission Report of 1969  to give protection to those accused persons who had a reasonable fear or apprehension of an arrest. Therefore, its aim was to protect those accused persons who had a reasonable cause or fear to believe that they could be arrested for a non-bailable offence. The need for providing anticipatory bail was also felt due to the rising occurrence of false cases being built against people due to rivalry or disagreements. Moreover, it was also believed that keeping a person in custody where there is no likelihood of the person absconding or misusing his liberty on bail would be unfair and unreasonable. Therefore, it was absurd to expect a person to stay in custody for a time period and then apply for bail. Keeping in mind the above factors, in 1973,  Parliament enacted the Criminal Procedure Code of 1973 and ensured to include the suggestions of the 41st Law Commission Report. The Parliament added Section 438 to the newly enacted code with the title “Direction of grant of bail to persons apprehending arrest”.

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This article will discuss the meaning, interpretation, as well as some of the most important judicial decisions on Section 438 of the Criminal Procedure Code, 1973.

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Difference between bail and anticipatory bail

Bail is granted to a person who is already under arrest. The person can file an application for regular bail under Sections 437 and 439 CrPC. On the other hand, anticipatory bails can be granted only before an arrest is made. It is made on the basis of a reasonable apprehension of fear or belief of being arrested for a non-bailable offence. An application for anticipatory bail must be filed to the High Court or the Sessions Court under Section 438 CrPC.

Section 438 CrPC and its meaning

Section 438 CrPC is divided into three sub-parts. In order to understand the provision in detail, it becomes necessary to understand each of its sub-parts in detail.

Section 438(1) provides that any person upon a reasonable belief of being arrested for a non-bailable offence can move an application to the High Court or Court of Sessions. Accordingly, the court, upon careful consideration, may reject or approve the application. If the application is approved, the person upon an arrest shall be released on bail. The most important condition in this provision is that the offence under consideration must be a non-bailable offence. This provision also clearly signifies that granting anticipatory bail is not a right but solely lies on the discretion of the Court. 

Section 438(2) on the other hand, lays down certain conditions that the applicant must fulfil in case the High Court makes a direction under Section 438(a). The conditions are-

(i) The person should be available for the interrogation as and when required.

(ii) The person should not threaten, induce or promise any person who is familiar with the facts of the matter to disclose or reveal any facts to the police officer.

(iii) The person shall not leave India without the prior permission of the Court.

(iv) The person shall also be bound by the conditions enumerated under Section 437(b) and it shall be as if the bail was granted under the section.

Lastly, Section 438(3) clearly provides that upon the application being accepted, the person upon arrest without a warrant shall be immediately released on bail. Further, if the magistrate takes cognizance, any warrant issued thereafter shall also be bailable.

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Nature of offence under Section 438 CrPC

Offences in criminal law can be classified as bailable and non-bailable. Section 2(a) of the CrPC defines bailable offences as those that have been explicitly defined as bailable in the First Schedule or are deemed bailable by the law in force. Non bailable is defined under the same Act as the ones that are not listed out in the First Schedule. Moreover, the second part of the Schedule also lists out non-bailable offences and defines non-bailable offences as those that are punishable with death, imprisonment for life, or imprisonment for seven years.

Bailable offences are those offences that are usually non-serious in nature. In bailable offences, bail is treated as a right and the accused shall be immediately released on bail. Non-bailable offences, on the other hand, include offences that are grave and serious in nature. In non-bailable offences, the bail solely lies at the discretion of the court. This means that bail under non-bailable offences is not a matter of right. Under Section 438 of the Criminal Procedure Code, 1973, the provision clearly states that anticipatory bails are only granted in case of non-bailable offences. 

Exceptions to Section 438 CrPC

The Criminal Amendment Bill 2018 introduced certain exceptions to the provisions of anticipatory bail under Section 438 CrPC by adding clause 4. The exceptions are-

Important landmark judgements surrounding Section 438 CrPC

The first landmark judgement on anticipatory bail came in 1980 in the case of Gurbaksh Singh Sibbia v. The State of Punjab (1980). The main issue before the court was whether a person can apply for anticipatory bail merely out of some fear. The apprehension of fear must be shown by the accused through facts and events. The court on this issue held that a person may not apply for anticipatory bail only out of mere fear or belief. This essentially means that the fear or belief must be founded on reasonable grounds. The Court also held that anticipatory bail is not a blanket right and can be limited by the courts from case to case. The court also opined that rights pertaining to personal liberty should not come with restrictions, and accordingly, anticipatory bail should not be time-bound. 

To summarise, the court laid down certain guidelines with respect to anticipatory bails. These are-

  • The applicant must prove to the court that there was a “reason to believe” that an arrest for a non-bailable offence could take place.
  • The courts must also apply their own minds and judge whether a case must be made out for relief.
  • The courts also held that the filing of an FIR is not mandatory before granting anticipatory bail. 
  • Lastly, the court also clarified that anticipatory bail cannot be granted after an arrest has been made.
  • Anticipatory bails are not blanket orders and should not be time bound.

In another important judgment, the Supreme Court in the case of Samunder Singh v. State of Rajasthan (1987) clarified that anticipatory bail should not be granted in cases of dowry deaths.

Soon after, in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996), the Supreme Court took a contrary view and held that anticipatory bail should be limited to a certain time period. The court reasoned that bails are granted by the courts when the investigation is incomplete and, therefore, the courts are not fully informed about the nature of the evidence against the accused. Therefore, bail should be granted only after the evidence is appreciated and the charge sheet is submitted. The rationale given by the Court in this judgement was heavily criticised and debated.

In the landmark judgement of Badresh Bipinbai Seth v. State of Gujarat (2015) the Supreme Court held that Section 438 CrPc should be interpreted liberally in light of Article 21 of the Indian Constitution which grants freedom of life and personal liberty. The Court was of the view that the two provisions must be read together as violating Section 438 will directly result in the violation of fundamental rights granted under Article 21 of the Indian Constitution. It was also believed that any provision that deals with personal liberty should not come with restrictions. 

However, the Supreme Court corrected its approach and overruled its earlier decisions in the recent 2020 judgement of Sushila Aggarwal v. State (NCT of Delhi) (2020) wherein the Court held that anticipatory bails should not be time-bound. It was also held that the life of an anticipatory bill can continue till the end of the trial. However, the courts can limit its duration if it finds it necessary to do so. Additionally, the court also pointed out that the bail application must be based upon concrete facts along with a reasonable ground for apprehending arrest. Therefore, vagueness should be avoided at all costs, and no application can be made out on vague allegations. The Court requires the application to be based on tangible grounds that can be objectively determined by the courts. The court iterated that important factors such as the role of the accused, the likelihood of the accused tampering with evidence, the nature of the offence and other considerations must be given adequate weightage.

In a recent development, the Supreme Court in the case of Mohammad Nazim v. State of Himachal Pradesh (2021), once again stressed the importance of maintaining a balance between a person’s right to personal liberty and the right of the investigating agency to investigate the matter. Moreover, the seriousness and gravity of the offence are factors that cannot be overlooked.

In another interesting development, the Punjab and Haryana High Court bench led by Justice Rajesh Bhardwaj in the case of Piyush (Minor) v. State of Haryana (2021) held that anticipatory bail applications are not maintainable on behalf of juveniles. The Court reasoned that since the Juvenile Justice (Care and Protection of Children) Act, 2015 is in itself a complete code, the provisions of the act will apply. Moreover, since a juvenile cannot be arrested, one cannot say that a juvenile had any apprehension of an arrest. Therefore, there can be no applicability of anticipatory bail in such cases.

Conclusion

Incorporating anticipatory bail in the Criminal Procedure Code, 1973, was undoubtedly a welcome move. Anticipatory bails form an integral component of the fundamental right to life and personal liberty provided under Article 21 of the Indian Constitution. However, at the same time, it is important to ensure that this right does not come in the way of investigation procedures. A balance between the two must be maintained at all times. The Indian Courts have also continuously iterated the same. The courts have also ensured that the provision of anticipatory bail is not misused and therefore should be accompanied by certain conditions. The foremost is that the apprehension of fear should not be based on vague grounds. The fear should be reasonable and must be proven in court. The intention of the legislature clearly points out that the courts have the discretionary powers to decide whether an application should be granted or not. The use of the words “as it thinks fit” signifies how the legislature wanted to confer this power on the courts. This also gives a sense of responsibility to the courts to use this power mindfully. 

Frequently Asked Questions (FAQs)

  1. Is everyone eligible to apply for anticipatory bail?

Anticipatory bail cannot be applied on behalf of juveniles. Moreover, the Criminal Amendment Bill 2018 also laid down certain exceptions wherein persons accused of rape and gang rape on women below the age of 16 and 12 years cannot apply for anticipatory bails.

  1. For what kinds of offences can one apply for an anticipatory bail?

According to Section 438 CrPC, anticipatory bail can only be applied for non-bailable offences, i.e., offences that are of a serious nature. 

  1.  Is FIR mandatory before granting an anticipatory bail?

The court in the landmark case of Gurbaksh Singh Sibbia v. The State of Punjab (1980) clarified that the filing of an FIR is not a prerequisite for granting anticipatory bail.

References

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