This article is written by Tarini Kalra, a BBA-LL.B. student from Fairfield Institute of Management and Technology, affiliated with Guru Gobind Singh Indraprastha University, New Delhi. The article examines the concept of anticipatory bail with the help of various case laws.

This article has been published by Sneha Mahawar.

Introduction

Consider a scenario where ‘A’ has committed a non-bailable offence and he is aware that he can get bail before he gets arrested. The Indian criminal law system provides an individual under Chapter XXXIII of the Code of Criminal Procedure, 1973, three kinds of bail: regular, interim, and anticipatory. Therefore, if ‘A’ wants to seek bail before getting detained, then ‘A’ may invoke one of the most significant defences of personal liberty defined under Section 438 of the Code of Criminal Procedure, that is, anticipatory bail. If a person believes they are likely to be arrested on non-bailable charges, they can move to the Court of Session or the High Court for anticipatory bail. Anticipatory bail is a type of pre-arrest bail, and the court’s authority to grant anticipatory bail is discretionary. 

Section 438 is a procedural provision that addresses the right to personal liberty and the presumption of innocence. The present article provides a detailed study on the provision of anticipatory bail under Indian criminal law. It attempts to present the recent developments in anticipatory bail along with a critical analysis of the judgments of the respective courts.

The scope of anticipatory bail under Section 438 CrPC

Section 438 primarily addresses pre-arrest bail for non-bailable offences. A person apprehended for arrest may apply to the Court of Session or High Court for a direction to be released on bail. The power to grant anticipatory bail is ultra vires for the lower courts. Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005 deals with the following factors that the court considers before granting anticipatory bail:

1. The nature and gravity of the accusations.
2. The charge levelled against the applicant intends to harm or humiliate him by having him detained.
3. The applicant’s record, including whether he has previously been imprisoned or sentenced by a court for any cognizable offence.
4. The potential of the applicant to defy justice.

If the High Court or Court of Session has not issued an interim order or has rejected the application for anticipatory bail, an officer in charge of a police station may arrest the applicant without a warrant based on the accusation included in the application. When a court provides an interim order, the applicant is required to submit a seven-day notice to the public prosecutor, and the application is only approved or refused after addressing it.

According to Section 438(1B), the applicant for anticipatory bail is obligatory when the court adjudicates the case and issues a final hearing of the application or passing of final order by the court. Upon the public prosecutor’s plea, if the court determines that such attendance is required in the interest of justice, then the applicant must appear in court. 

Development of law on anticipatory bail in India

Under the Code of Criminal Procedure (1898), there was no provision related to anticipatory bail. Anticipatory bail evolved as a result of judicial decisions interpreting Sections 496, 497, and 498 of the Code of Criminal Procedure, 1898. Section 496 dealt with circumstances when bail is to be granted. Section 497 dealt with circumstances when bail may be taken in the case of non-bailable offences. Section 498 dealt with the power of the High Court or the Court of Session to direct admission to bail or reduction of bail. The notion arose from the Law Commission’s suggestions, which considered it a helpful addition to the protection of a person’s rights. The concept was first mentioned in the 41st Law Commission Report of 1969 in paragraph 39.9.

The Law Commission observed:

“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. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.”

Section 497A was inserted after the report of 1969, which dealt with the direction to grant bail to a person apprehended for arrest for committing a non-bailable offence. Such an individual could apply to the High Court or the Court of Session, which has discretionary power to grant bail. A magistrate taking cognizance of an offence must comply with Section 204(1), which deals with the process of the issue before the magistrate. When a person was arrested without a warrant by an officer in charge of a non-bailable offence and who expressed a willingness to be provided with bail at the time of the arrest or at any other time while in the officer’s custody, they must be released on bail.

The Law Commission of India stated that anticipatory bail was coherent with the 41st Law Commission’s recommendations in paragraph 31 of its 48th Report (1972). While agreeing with the provision, the Commission emphasised that such power should only be exercised in exceptional instances. To prevent fraudulent petitioners from misusing the provision, the final decision granting anticipatory bail should be granted only after giving notice to the public prosecutor, and the initial order should be transitory. The Commission further added that the Section should specifically state that such an order can only be made after justification and if the court is convinced that doing so is necessary for the “interest of justice”. Section 447 of the Code of Criminal Procedure Bill, 1970,  was modified slightly to become the legal provision for the granting of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. 

In the case of Amir Chand v. Crown (1949), the Punjab-Haryana High Court remarked that if a person who has been issued an arrest warrant but is not already in custody can appear in court and surrender himself, bail may be granted.

In the case of State v. Jagan Singh (1952), the Madhya Pradesh High Court acknowledged the idea that bail might be granted in anticipation to a person who surrenders before the court out of fear of being detained by the police for any cognizable offence.

The case of Balachand v. State of Madhya Pradesh (1976) was a landmark anticipatory bail case. It addressed several vital principles related to anticipatory bail. The Hon’ble Supreme Court imposed two conditions on the granting of anticipatory bail. The first condition was that the prosecution was allowed to object to the application for release, and the second condition was that the court must be satisfied that there were reasonable grounds to believe that the defendant was not guilty of any violation of any provision of the rules or orders made by the Central Government or the State Government. The Supreme Court ruled that Rule 184 only seeks to limit the exercise of the power to grant bail by stating that the court shall not release a person on bail unless the aforementioned two conditions are fulfilled. Section 438 of the Code contains the requirements set out in Section 437(1). It was followed because Section 438 immediately follows Section 437, and if these conditions were not implied in Section 438, a person accused of any non-bailable offence may get away under Section 438 by obtaining an order of anticipatory bail without establishing that he had reasonable grounds to believe that he was not guilty of any punishable offence.

Breakdown of the meaning of anticipatory bail under Section 438 CrPC 

In accordance with Section 438, a person who anticipates being arrested may be granted anticipatory bail for non-bailable offences prior to a First Information Report (FIR) being lodged. When an individual is arrested, they must apply for regular bail or interim bail, depending on the situation. Anticipatory bail is the direction to release a person on bail even before arrest.

Conditions that may be imposed by the court while granting anticipatory bail

1. That individual makes himself accessible for questioning by a police officer when required.
2. That individual must provide the local police station with their current residence address, native address, and phone number.
3. That the individual will not offer any inducement, threat, or assurance to any person familiar with the facts of the case, directly or indirectly, to prevent him from disclosing such information to the court or any police officer.
4. That the individual will not leave the territory of India without prior authorization from the court.
5. Any other additional condition under Section 437(3)  may be imposed as if the bail was granted under that Section.

In a landmark judgement, Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble Supreme Court ruled that an individual must have reasonable grounds to apply for anticipatory bail to apprehend the arrest and that “reason to believe” means the apprehension must be established on reasonable grounds and not just a mere “belief” or “fear”.

Power vested to the courts for granting bail for non-bailable offences under Section 437 CrPC

Section 437 addresses the circumstances under which bail may be granted in the case of a non-bailable offence. An accused or suspected person may be released on bail if they are charged with a non-bailable offence, are arrested or held without a warrant by a police officer, or appear in court before a court other than the High Court or Court of Session subject to the following conditions:

1. Such a person should not be released if there are substantial reasons to believe that he has committed an offence punishable by death or life imprisonment.
2. If the offence is a cognizable offence and he has previously been convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more, or he has previously been convicted on two or more occasions of a non-bailable and cognizable offence, the court may direct that such a person be released on bail.
3. If the person is under the age of sixteen years, is a woman, is sick, or is infirm. 
4. If a person is to be released on bail, it is determined that it is proper to do so for any other reason.
5. That the witness may be called upon to identify the accused individual during an inquiry and it should not be a sufficient basis for refusing to grant bail if he is otherwise eligible for bail and offers an assurance to comply with any orders made by the court.

At any point during the investigation, inquiry, trial, or as the case may be, if it appears that the accused has committed a non-bailable offence but there are adequate grounds for additional questioning by any officer or court into his guilt, or there are no reasonable grounds for believing, the accused shall be subjected to the provisions of Section 446A and, till the pending of such inquiry, the court or officer may decide to release the accused without sureties or on bail, depending on the circumstances.

A person may be granted bail under subsection (1) of Section 437 if the accused is suspected of committing an offence punishable by imprisonment for up to seven years or more, an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, 1860 or by conspiring to commit, or abetting in the commission of, any offence. The court may impose any conditions as follows:

1. To ensure that such a person attends in accordance with the terms of the bond issued. 
2. To guarantee that such a person does not conduct an act similar to the offence for which he is accused or suspected of committing.
3. In the interest of justice

When an officer or a court releases a person on bail under subsection (1) or subsection (2), they must record in writing the exceptional reasons for doing so. 

Any court that has released a person on bail under sub-section (1) or (2) may, if it deems it appropriate, order that such person be arrested and confined into custody.

When the trial of a person accused of any non-bailable offence triable by a Magistrate is not addressed within sixty days of the first date fixed for taking evidence in the case, such person shall, if he is in custody during the entire period, be released on bail to the satisfaction of the Magistrate, with reasons to be recorded in writing or unless the Magistrate directs otherwise. 

If the court believes that there are reasonable grounds to believe that the accused is not guilty of any offence at any time after the conclusion of a person’s trial for a non-bailable offence but before judgement is delivered, it shall release the accused, if he is in custody, upon his execution of a bond without sureties for his appearance to hear judgement delivered.

Cancellation of anticipatory bail under Section 439 CrPC

Section 439 deals with the extraordinary powers of the High Court or Court of Session regarding bail. A High Court or Court of Session has the power to order the arrest and custody of any individual who has been granted bail under Section 439(2). A High Court or Court of Session may order- 

1. Any accused person of an offence who is in custody must be released on bail if the nature of the offence is stated in Section 437(3), or may impose any condition that it deems necessary for the purposes listed in that subsection.

(b) Any restriction that a magistrate imposed on a person’s release on bail may be lifted or changed, on the condition that the High Court or Court of Session notifies the Public Prosecutor of the application for bail and provides written notice of the reasons for doing so before releasing an accused on bail who can only be tried by the Court of Session or carries a sentence of life imprisonment.

In the case of Charu Soneja v. State (Nct Of Delhi) (2022), the Delhi High Court defined the difference between a dismissal of a bail application and a cancellation of bail. The Court has opined that it is within its discretion to dismiss a bail order for non-bailable offences. It can be rejected simply because of the nature of the offence and the possibility that the accused will abuse his or her liberty if granted. In the case of cancellation of the bail application, the court has the authority to rescind the previously granted liberty. The Court justified its conclusion by citing the case of Delhi Admn. v. Sanjay Gandhi (1978) and stating:

“The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.”

Circumstances when anticipatory bail cannot be filed

1. In the case of Ramesh v. State (2022), the Karnataka High Court ruled that an accused person who appears in court, whether through a lawyer or in person, cannot seek anticipatory bail.
2. An individual who commits an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot apply for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 as per the provision of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, incorporated Section 18A, which clarified that it is not necessary to conduct a preliminary investigation before filing a First Information Report against a person, and the provision of Section 438 shall not be applicable under this Act unless any court passes any judgement, order, or direction. However, the Chhattisgarh High Court in the case of Jawed Khan v. the State of Chhattisgarh (2022) ruled that if the offence seems to be an abuse of the law, anticipatory bail can be granted. The Kerala High Court held in the case of K. M. Basheer v. Rajani K.T & Ors and Connected Cases (2022), that only the Special Court or the Exclusive Special Court established under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can entertain applications for anticipatory bail. It further ruled that the High Court lacks both concurrent and original jurisdiction under Sections 438 and 482 of the Criminal Procedure Code to grant bail for offences under the aforementioned Act. The High Court’s appeal authority under Section 14A will apply to the decision of whether to grant or deny anticipatory bail.
3. The Supreme Court ruled in Directorate of Enforcement v. Ashok Kumar Jain (1998) that an accused person is not entitled to anticipatory bail when charged with an economic offence.
4. Except in cases when the court is immediately persuaded that the charge against the defendant appears to be false or groundless, Section 438 discretion cannot be applied to offences with the punishment of death or life imprisonment.

How is anticipatory bail related to Article 21 of the Indian Constitution

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It safeguards an individual’s freedom and liberty against unjustified detention and arrest, regardless of whether the person is an “accused,” thus upholding the principle of innocence until proven guilty. Anticipatory bail is a statutory right. Rights that are legislated, ordained, or bestowed by legislation are known as statutory rights. Anticipatory bail is the obligation to uphold the fundamental right to personal liberty in the event of false charges while adhering to the legal concept of “innocent until proven guilty”. The concept of anticipatory bail is one of the most significant defences of personal liberty. 

In the case of Sangeeta Bhatia v. State Of Nct Of Delhi (2022), the Delhi High Court ruled that anticipatory bail has its roots in Article 21 of the Indian Constitution and that Section 438 of the Criminal Procedure Code establishes it as a statutory right.

In the case of Tarun Jain v. Directorate General of GST Intelligence DGGI (2021), the Delhi High Court determined that anticipatory bail is a statutory right under Article 21 right to life and personal liberty.

In the case of Bhadresh Bipinbhai Sheth v. State Of Gujarat & Anr (2015), the Supreme Court determined that the provision of anticipatory bail is included in Section 438 of the Code of Criminal Procedure and is conceptualised under Article 21 of the Constitution, which pertains to personal liberty. Thus, Section 438 of the Code must be interpreted broadly in accordance with Article 21 of the Constitution.

In the case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble Supreme Court ruled that the legality of Section 438 must be assessed by the standard of fairness, which is inherent in Article 21.

Important case laws 

In the case of Ankit Bharti v. State of Uttar Pradesh (2020), the Allahabad High Court held that although the High Court and Court of Session have concurrent authority, it is conventional to approach the Court of Session first and subsequently the High Court if the application is denied. Applications can be submitted directly to the High Court when the reasoning is solid, logical, and compelling.

In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court ruled that no time restriction may be placed while granting anticipatory bail and that it can last till the completion of the trial.

In the case of Subrata Roy Sahara v. Pramod Kumar Saini (2022), the Supreme Court ruled that inquiries in anticipatory bail applications must be limited to the applicant’s case and relevant information. It cannot be impleaded against third parties as it would be in violation of Order 1 Rule 10 of the Code of Civil Procedure, 1908.

Recent developments around anticipatory bail

1. A Gujarat High Court Bench in the case of Shree Vikas Co.Op. Bank Ltd. v. State Of Gujarat (2022) outlined the law pertaining to the revocation of anticipatory bail has been presented in an illustrative and not comprehensive manner. The Court ruled that bail can be revoked if

1. The accused abuses his liberty by engaging in similar criminal activity.
2. Hampers the process of the investigation.
3. Attempts to interlope with evidence or witnesses.
4. Threatens witnesses or engages in similar activities that would impede a smooth investigation.
5. There is a risk of him fleeing to another country, or 
6. Attempts to make himself scarce.

2. The Gujarat High Court asserted in the case of Mansi Jimit Sanghavi v. State of Gujarat (2022) that a person facing arrest can seek “transit anticipatory bail” in order to obtain time to approach the competent court with territorial jurisdiction in the matter, even though no FIR has been lodged.
3. The Allahabad High Court ruled in the case of Manish Yadav v. State of Uttar Pradesh (2022) that an anticipatory bail plea is permissible if a proclamation under Sections 82 and Section 83 of the Code of Criminal Procedure, 1973 is made against the accused after the plea is filed.
4. The Punjab and Haryana High Court stated in the case of Deen Mohd. v. State of Haryana (2022) that it is well-established law where a process is “ex debito justitiae,” which means “by reason of an obligation of justice”, the Court can dismiss an anticipatory bail based only on the insinuation that the defendant attempted to deceive the Court by withholding information.
5. In the case of Vijay Babu v. State of Kerala & Anr (2022), the Kerala High Court ruled that anticipatory bail applications can be allowed even if the accused is in another country.

Conclusion 

The Hon’ble Supreme Court held in the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (1977) that “Bail is a rule and jail is an exception“. Anticipatory bail has been used as a defence against unfair detention for persons wrongfully accused of crimes. The power of anticipatory bail must be exercised in exceptional instances when the courts consider the petitioner is being falsely charged. Furthermore, in addition to safeguarding the interests of the accused, anticipatory bail as a legal measure forbids the accused from abusing his freedom or evading justice.

Frequently Asked Questions(FAQs)

What is the distinction between bail and anticipatory bail?

A bail is issued upon an arrest, resulting in the release from police custody, whereas anticipatory bail is provided to a person apprehending or anticipating arrest. Anticipatory bail may be granted after lodging an FIR, but only before arrest.

When can an anticipatory bail petition be filed?

Anticipatory bail can be filed by an individual at the time of apprehension of arrest for the alleged commission of a non-bailable offence.

What is the time period of anticipatory bail?

Anticipatory bail will be issued until the trial is completed.

Who has the authority to grant anticipatory bail?

The power to grant anticipatory bail is vested to the Court of Sessions or the High Court under Section 437 of the Code of Criminal Procedure, 1973.

References

• https://www.livelaw.in/pdf_upload/transit-bail-referred-to-full-bench–417240.pdf
• https://www.livelaw.in/pdf_upload/gujarat-high-court-417477.pdf 
• https://www.writinglaw.com/what-is-blanket-order/#:~:text=Meaning%20of%20Blanket%20Order.,for%20a%20non%2Dbailable%20offence. 
• https://www.livelaw.in/news-updates/no-bar-entertaining-anticipatory-bail-plea-proclamation-8283crpc-issued-during-pendency-allahabad-high-court-204505#:~:text=The%20Allahabad%20High%20Court%20has,P.C.%20is%20issued.
• https://repositorio.ual.pt/bitstream/11144/5040/1/0%20EN-vol12-n1-art14.pdf https://blog.finology.in/criminal-law/anticipatory-bail-under-crpc 
• https://corporate.cyrilamarchandblogs.com/2021/01/decoding-the-law-on-anticipatory-bail/ 
• http://dspace.cusat.ac.in/jspui/bitstream/123456789/11025/1/Genesis%20of%20the%20Concept%20of%20Anticipatory%20Bail.PDF 
• https://www.indialegallive.com/constitutional-law-news/supreme-court-news/anticipatory-bail-inching-towards-article-21/  

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