This article is written by Manish Bhojwani, pursuing How to Use AI to Grow Your Legal Practice from LawSikho, and edited by Koushik Chittella. This article briefly discusses the provisions and precedents relating to anticipatory bail, including the principles and conditions relating to the granting of anticipatory bail.

Meaning: bail and anticipatory bail

In simple terms, bail can be defined as the release of an accused against a sum of money on the assurance that he will appear for a trial in a court of law at a specific date. The term “anticipatory bail” is not defined under the Code of Criminal Procedure, 1973. In simple terms, it means that the accused had obtained bail in anticipation of his/her arrest. It is also called pre-arrest bail in cases where a person apprehends arrest for the offences under the Indian Penal Code, 1860 (The Bharatiya Nyaya Sanhita, 2023, from July 1, 2024). When bail is granted before the actual arrest takes place, it is called anticipatory bail.

Historical Background

The Code of Criminal Procedure, 1898 (the “Old Code”) did not contain any provision with respect to anticipatory bail. The further amendments to the 1898 Criminal Code, especially in the years 1923 and 1955, were focused more on simplifying the procedures and speeding up the trials. The major provisions of the Old Code remained unchanged for a very long time until comprehensive recommendations were made by the Law Commission of India in its Fourty-First Report in 1969. This was the first time “anticipatory bail” appeared in the Indian Criminal Jurisprudence. The legislators accepted the recommendations of the Law Commission of India and introduced Clause 447 in the draft bill of the Code of Criminal Procedure, 1970. The Law Commission, in its 48th report, made further suggestions to strengthen the provisions and to avoid misuse of the provisions. Clause 447 was enacted with certain amendments and found its place under Section 438 of the Code of Criminal Procedure, 1973.

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The Law Commission of India, in its forty-first report, pointed out the need for a provision for anticipatory bail. There were conflicting judicial views on the powers of the courts to grant anticipatory bail; however, the majority view was considered, which was in favour. It was explained that there may be instances where personal or business vengeance may incite a false case against a rival for harming the reputation and social status of a person. The Law Commission of India highlighted the need for this provision in view of the increased political rivalry and recommended the inclusion of the provisions in the 1973 Code. It was also highlighted that there may be instances where there is a reasonable ground that a person may not flee from the justice system or misuse liberty; this protection is necessary to save a person from humiliation, detention, or arrest while he applies for regular bail.

Interpretation of Section 438 of the CrPC, 1973

The Code of Criminal Procedure under Section 438 contains six (6) sub-sections relating to the bail of an accused:

  1. Section 438(1): The original sub-section provided that a person may approach a High Court or the Sessions Court when he apprehends arrest on an accusation of having committed a non-bailable offence to release him on bail, and the Court may direct towards the same. This sub-section was amended in 2005 to include the factors that courts have to consider before granting anticipatory bail:
    1. the nature and gravity of the accusation;
    2. The antecedents of the applicant, which include whether he had previously undergone imprisonment on conviction by any Court of law in respect of any cognizable offence;
    3. possibility of the applicant to flee
    4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

The proviso to this subsection provides that if an interim protection from arrest is not granted by the court, then the police are free to arrest the applicant. However, the Hon’ble Supreme Court in M.C. Abraham and another v. State of Maharashtra held that when the anticipatory bail application of a person has been rejected, that does not mean that he may necessarily be arrested by the investigating officer; it depends on the facts and not on whether the grant of bail has been done or not.

  1. Section 438(1-A) provides that while granting interim relief, seven (7) days’ notice must be issued to the Superintendent of Police and the Public Prosecutor to defend the said application.
  2. Section 438(1-B) provides that upon the application by the public prosecutor in the case and if the court considers that the accused must be present, the applicant must be present at the time of final hearing and passing of the final order by the Court.
  3. Section 438(2) empowers the court to impose certain conditions, while issuing directions under 438(1):
  1. Making himself available for interrogation by a police officer when required.
  2. That he shall not directly or indirectly make any threat or inducement to a person with the knowledge of the facts to dissuade from disclosing such facts
  3. He shall not leave India without the Court’s permission 
  4. Any other such condition under Section 437(3).
  1. Section 438(3) provides that if a person is arrested without a warrant and has the order of anticipatory bail, then such person must be released on bail. Additionally, if the magistrate takes cognizance of the offence and considers it necessary to issue a warrant for the arrest, then such a warrant shall be a bailable warrant.
  2. Section 438(4) was inserted in the year 2018 and provides that in cases of arrest involving an offence under Section 376(3) [rape of a woman under the age of 16] or Section 376-AB [rape of a woman under the age of 12] or Section 376-DA [gang rape on women under the age of 16] or Section 376-DB [gang rape on women under the age of 12] of the Indian Penal Code, then anticipatory bail shall not be granted by the Court.

The nature of anticipatory bail

Regular bail vs Anticipatory bail

A. Regular bail is granted to a person already in custody of the police, while anticipatory bail is granted when a person approaches the court in apprehension of his arrest. Regular bail is sought during the investigation or trial, whereas anticipatory bail is sought before the arrest and becomes operative at the time of actual arrest.

B. Regular bail is to secure the release of a person who is in the custody of the police, whereas anticipatory bail is a protection against arrest.

C.  Anticipatory bail can be granted by the High Court or Court of Sessions, whereas regular bail can be granted by the court having jurisdiction over the case, such as Magistrate Court, Court of Sessions, or the High Court.

D. In cases of bailable offences, regular bail is granted as a matter of right; however, in cases of non-bailable offences, the courts have the discretion to grant regular bail. Anticipatory bail can be sought only in cases of non-bailable offences.

Anticipatory bail is a fundamental right under Article 21 of the Constitution

The Hon’ble Supreme Court in State of M.P. & Anr v. Ram Krishna Balothia and Anr. rejected the contention that Section 438 of the Code of Criminal Procedure, 1973, is an integral part of Article 21 of the Constitution. However, various pronouncements of the Apex Court have ensured the protection of personal liberty while interpreting the provisions of Section 438. The time limitation of the anticipatory bail was considered by a three-judge bench of the Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra, where it was held that the anticipatory bail should be granted for a limited time. Later, the Apex Court held that the time period of anticipatory bail should not be limited in the absence of any specific provision in the law, and interpreting such an intention will impose unreasonable restrictions over the personal liberty of a person. The Apex Court laid down the guiding principles in Gurbaksh Singh Sibbia v. State of Punjab, which was not brought before the Bench while deciding Salauddin (Supra), and in Siddharam Satlingappa Mhetre v. State of Maharashtra, the Hon’ble Supreme Court corrected the law by interpreting the right of personal liberty into Section 438 and held that the life of an anticipatory bail will run indefinitely until cancelled by the concerned court.

Thereafter, the five-judge bench in Sushila Aggarwal v. State (NCT of Delhi) affirmed that the time limit of anticipatory bail should not be curtailed to a specific period of time. It also held that the investigating agency may approach the court, which has issued anticipatory bail for cancellation, in case the conditions imposed are violated or a change in circumstances.

Guiding Principles in Granting anticipatory bail

In Gurbaksh Singh Sibbia (Supra), the five-judge bench of the Apex Court issued the guiding principles for granting anticipatory bail, which are:

  1. The applicant must understand the term “reason to believe” in Section 438 which means that the applicant has to show the reasonable grounds that he apprehends arrest. The vague and baseless beliefs will not suffice for the test laid down to grant anticipatory bail.
  2. The Court of Sessions or the respective High Court must apply its mind while deciding whether the prima facie case is made out to grant anticipatory bail.
  3. An FIR is not a condition precedent for granting anticipatory bail.
  4. Anticipatory bail can be granted even after an FIR is filed but arrest has not been made.
  5. The relief under Section 438 cannot be claimed after the arrest.
  6. Anticipatory bail cannot be granted where there is a possibility of collecting incriminating evidence from the person, and remand of the person is necessary.
  7. In cases of offences punishable by death or life imprisonment, anticipatory bail should not be granted unless the court is satisfied of falseness of charges.

Important Cases relating to anticipatory bail

Some other notable cases of the Apex Court relating to anticipatory bail are:

  1. In Pratibha Manchanda v. State of Haryana, the Apex Court reiterated the conditions laid down in Gurbaksh Singh Sibbia (Supra) and Siddharam Satlingappa Mhetre (Supra). 
  2. In Directorate of Enforcement v. M. Gopal Reddy, the Apex Court held that the conditions under Section 45 of the Prevention of Money Laundering Act, 2002, for grant of bail are applicable to Section 438.
  3. In State of Haryana v. Dharamraj, the Court held that anticipatory bail can be granted to a proclaimed offender only in rare and exceptional cases.

Section 438 of CrPC vis-a-vis Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023:

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contains provisions for anticipatory bail in Section 482. This differs from the provisions given under Section 438 of the CrPC in the following way:

  1. Section 482(1) of the BNSS brought the original version of Section 438(1) of the CrPC, which was before the amendment of 2005.
  2. The proviso to Section 438(1) of the CrPC is excluded from Section 482 of the BNSS, which means the power of the police officer in-charge to arrest the applicant in cases where interim relief is not granted by the High Court or the Sessions Court, is not available under the new law.
  3. Sections 438 (1-A) and 438 (1-B) of the CrPC are also excluded from Section 482 of the BNSS.
  4. Section 438(4) of the CrPC and Section 482(4) of BNSS are similar, except that the offence of rape on a woman under the age of 16 has been increased to woman under the age of 18.

Conclusion

The analysis of the precedents and provisions makes it crystal clear that the High Court and Sessions Court are the sole discretionary authorities to grant anticipatory bail to an applicant. The person seeking anticipatory bail must know the factors and parameters that the court can take into consideration, such as:

  1. the nature and gravity of the accusation made;
  2. the role of the accused;
  3. the criminal history of the accused;
  4. the possibility of the accused to fleeing;
  5. the possibility of the accused’s likelihood to repeat similar or other offences;
  6. the accusations made with the intent to injure or humiliate the person;
  7. the offences affecting the public at large.

It is important for a person seeking anticipatory bail to approach the legal expert with complete and true facts for proper and timely filing of the application. The application must contain facts that can prove that there is reasonable ground to believe that the applicant can be arrested or detained by the investigation agency. It is to be noted that vague and general allegations against the applicant will not entitle him to anticipatory bail. It is also equally crucial to understand that the Apex Court has interpreted the provisions of anticipatory bail in connection with personal liberty, but the person must be aware of his rights in order to exercise them.

References

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