In this article, Rupali S. Akolkar discusses the procedural intricacies involved in Anticipatory Bail Application (ABA).

Anticipatory Bail Application

ABA stands for an Anticipatory Bail Application. A person who apprehends arrest can approach the Competent Court and request for grant of Anticipatory Bail. Anticipatory Bail literally means a Bail in Anticipation of Arrest.

The Constitution of India, 1950 under Article 21 states that: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Thus the life and personal liberty of any person is considered to be of utmost importance and it cannot be taken away unless it is as per the procedure established by law. Unlike other rights granted under the Constitution, these two rights, i.e. Right to Life, and Right to Personal Liberty are guaranteed to all persons irrespective of their citizenship, thus they are not restricted in their application to Indian Citizens alone.

Roscoe Pound, an eminent jurist, chief advocate of “sociological jurisprudence” and one of the greatest American Law Professors, aptly observed in his book “The Development of Constitutional Guarantee of Liberty” that whatever, `liberty’ may mean today, the liberty as guaranteed by our bills of rights, “is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals.” – Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors on 2 December, 2010

The Right to various types of Freedom is defined under Articles 19 – 22 of the Constitution of India, 1950. Article 19 guarantees right to freedom of speech and expression, assembly, to travel and reside in any part of India or practice any profession. These are not absolute rights, but are to be exercised subject to certain restrictions. Article 20 provides protection in respect of certain offences and acts as, for example, a protection in case of ex post facto laws, and prevents double jeopardy. It can be expressed in the Latin Maxim: Nemo Debet Bis Puniri Pro Uno Delicto. It means that no man should be punished twice for one offence.

This Article also acts against self incriminating laws. Thus Article 20 (3) specifically states that “No person accused of any offence shall be compelled to be a witness against himself”. Thus, according to the criminal jurisprudence, the accused is presumed to be innocent till his guilt is proved. This is one of the basis on which the Person requesting for anticipatory bail approaches the court. One of the considerations here is that it is an apprehension that he will be arrested because someone has made a complaint against him with malafide intent, ALTHOUGH HE IS INNOCENT, and the Law specifically states that he will be deemed to be innocent until proved guilty, and hence he should be protected by means of an anticipatory bail order.

In such cases often, the Courts will consider the nature and gravity of the alleged offence, Antecedents of the Applicant, his age, educational or family background, the possibility of the accused likely to commit the offence again, possibility of the applicant fleeing from justice, and factual circumstances of the case. These weigh heavily on the Judge’s mind in case of granting an Anticipatory Bail.

Article 22 provides safeguard in case of detention and states specific rights of the accused to know the grounds of his arrest, and to have his family or friends informed about the arrest, and to consult a legal practitioner of his choice. It also speaks of safeguards and preventive detention under certain laws.

Going to the dictionary meaning, the Black’s Law Dictionary defines Anticipation as an “Act of doing or taking a thing before its proper time”.

The same dictionary goes on to define Bail as “The order of a Competent Court or Magistrate that a person accused of crime be discharged from actual custody upon the taking of bail.”

The term “Anticipatory Bail” is not defined in the Code of Criminal Procedure. But it can be simply said to be a pre-arrest order granted by the Competent Court to release a person on bail in case he is arrested on a complaint of committing a non-bailable offence. In other words, it is a grant of bail order before arrest, in anticipation of arrest.

The Order granted by the Court comes into effect only when the person is arrested. Thus, the moment a person who is anticipating his arrest in a non bailable offence, is arrested, he will be able to get himself released, i.e. secure his freedom guaranteed under the Constitution, by using the order of the Court, of the Anticipatory Bail, granted to him. The Court may specify the terms and conditions, the amount to be paid for executing the bond, etc. The Court may also specify that the person who is released on an Anticipatory Bail shall remain present in the concerned Police Station every week / or any designated date regularly, and co-operate in the investigation. The Court may also impose conditions that the person shall not intimidate the victim or the witnesses and shall not tamper with evidence. Sometimes the person shall be restricted in movement and may not be allowed to leave the country without the permission of the Court.

While Anticipatory Bail grants freedom to the person, and is a great protection to people who are falsely implicated in non-bailable offences just to fulfill the personal vengeance of their rivals, there are certain conditions attached to this freedom, which often times the applicant, when he fails to comply, results in cancellation of the Anticipatory Bail leading to his arrest.

However if we go to consider the factual matrix of the freedom which is being enjoyed by a person who is yet to approach the Hon’ble Court for grant of an Anticipatory Bail, we will realize that the person is actually paying a cost for his freedom, by willing to impose on himself the conditions laid down by the Court, as against the complete freedom he was enjoying before the Order was granted in his favor. Thus inspite of the presumption of his innocence the accused is willing to subject himself to restrains in consideration for the assurance that he shall be set free on bail, in the event of his arrest. Thus it can be said that the accused is willing to bear the cost in order to alleviate his fear of being arrested.

The Code of Criminal Procedure, 1973,under Sec. 438 makes provisions for applying for Anticipatory Bail.

Sec. 438 of CrPC reads :

Direction for grant of bail to person apprehending arrest.

(1) 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.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) 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;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) 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, be 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).

Thus the main purpose of such a provision is to prevent undue harassment of the person by pretrial arrest or detention.

Besides the 41^st and the 48^th Law Commission Reports contributing significantly to the development of this section, the 203^rd report has also contributed by suggesting the following amendments to this section :

Amendment of section 438

In section 438 of the principal Act, for subsection (1), the following sub-sections shall be substituted, namely:-

“(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:-

• the nature and gravity of the accusation;
• 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;
• the possibility of the applicant to flee from justice; and
• 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.

(1A) 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.

(1B) 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.”.

If we go into the Sub Clause (1) it states WHEN a person can apply for an Anticipatory Bail.

The reason given is :

WHEN a person has a reason to believe that he may be arrested on an accusation of having committed a non bailable offence,

Then he can approach the Honorable Court for grant of Anticipatory Bail.

So when can a person have a “Reason to Believe”?

This can occur when a cause has arisen where someone has gone and lodged a complaint against him in the police station. Many times when a person is called by the Police for inquiry and is informed about the complaint against him, it is only then that he apprehends arrest in the matter and approaches the Court. Other times the person is already aware that a particular person has gone against him to lodge a Complaint. Here the “reason to believe” should not be a mere apprehension or illogical fear, but should be something which can be put before the Court to determine whether the person is likely to be arrested or not.  However a FIR is not a condition precedent for making an application for Anticipatory Bail. This can be seen from various cases like K. Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933  (AP), Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632,  etc. In Thayyanbadi Meethal Kunhiraman vs S.I. Of Police on 1 April, 1985, it has been stated that “It is true that in order to invoke the provision it is not necessary that a case has already been registered or even a first information has been lodged.”. In Digendra Sarkar and others, 1982 Crl.LJ. 2197 it has been held that “The filing of an FIR is not a condition precedent to the application for anticipatory bail and in such 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, not for the purpose of being taken into custody of the Court but for getting an order for his release in case he is arrested.”

When are provisions of Anticipatory Bail likely to be used?

These provisions can be useful when people are :

1. Falsely implicated by their rivals.
2. Implicated by people who use other influential people in order to get even with someone.
3. Victims of family feuds which give rise to false complaints against each other.
4. Victims of Marital discord, especially in case of dowry, which inevitably lead to implication of in-laws and other relatives of the husband along with the husband.
5. Implicated due to Political rivalry.
6. Implicated due to Professional rivalry.
7. Implicated due to some frivolous case being lodged against them to defame or disgrace them in the society or to impair their professional / personal/ family life.
8. Subjected to legal consequences due to some malafide or hostile intention of a rival.

The Sub-Clause further states that such a person can approach the High Court or the Sessions Court, indicating that both the Courts have concurrent jurisdiction in case of granting an Anticipatory Bail Order.  Thus a person can approach the Sessions Court or the High Court with a prayer to grant Anticipatory bail.

Now, when the person approaches the Court, the Court has to consider several factors as stated above, and also in the amended provisions. The nature of offence, the gravity, likelihood of repetition of offence, the possibility of accused absconding, the antecedents of the accused, the possibility of threatening the victim or witnesses, etc. are factors which are most often taken into consideration. This is a major decision, because the Courts are facing a conflicting situation where they have to safeguard the Right of Liberty of the accused person, as he is presumed to be innocent till proved guilty, and at the same time they have to weigh the safety of the Society and the Complainant and also ensure the completion of investigation of the case. Thus, though the Article 21 guarantees liberty, yet the right to an Anticipatory bail cannot accrue from it as a Fundamental Right. It can be merely stated to be a Statutory right which can be given “Subject to terms and conditions/ restrains on freedom” if the Court “thinks fit”. Thus the discretionary power of the Court comes into play where the Court has to apply its mind to determine whether there are reasons to believe that the person is falsely implicated, and whether there is a likelihood that the person will be arrested and at the same time ensure that if released on bail he shall not misuse his freedom and stay present during the investigation and the trial.

Sub Clause 2 states the conditions which can be imposed on a person while granting Anticipatory bail. These may include imposing conditions of attendance at the police station and cooperating with the investigating machinery. It may include restrictions on movement outside the country. It may also include execution of bail bonds or third party sureties. Sometimes the bank accounts are frozen or the passports are deposited to prevent absconding from the Country.

Sub Clause 3 states when the Anticipatory Bail order will come into action. It states that it will take action the moment the person to whom the order is granted is arrested. If the arrest is made by a police officer, without warrant, then if the person is prepared to give bail, then he shall be released on bail, while if the Magistrate is to issue a warrant against such a person, the Magistrate shall issue a bailable warrant to comply with the directions of the Court.

The major consideration in such a case is whether the accused needs to be present at the time of final hearing of the Anticipatory Bail application. Although the Law Commission Report has suggested the same, it is feared that in such a case the accused may be arrested if his anticipatory bail application is rejected. However in Cr. M. P. No . 978 of 2014 Balmukund Dubey & others Vs. State of Chhattisgarh & another, it has been held that since the amendment to section 438 (1-B) has been inserted but not brought into force by means of a notification, hence the presence of the accused at the time of final hearing or the necessity of his being in custody at the time of final hearing is not a mandate and can be dispensed with. The same has been held in Sandeep Kumar Bafna Vs. State of Maharashtra and Another AIR 2014 SC 1745. It is stated that “The conclusion of the Law Commission, in almost identical words to those extracted above are that: “when the applicant appears in the Court in compliance of the Court’s order and is subjected to the Court’s directions, he may be viewed as in Court’s custody and this may render the relief of anticipatory bail infructuous”. Accordingly, the Law Commission has recommended omission of sub-section (1- B) of Section 438 CrPC.”

When an Anticipatory Bail may not be granted?

1. In case of repeated offences of heinous nature.
2. When the Gravity of Offence is high.
3. When the accused has past antecedents.
4. When the possibility of the accused absconding or tampering with evidence or witnesses/ victims/ Complainant is high.
5. When a warrant is already issued by the Magistrate.
6. When offences are under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Thus it can be said that the purpose of Anticipatory Bail is to protect the accused from pre-trial arrest and detention and to protect his liberty as assured by the Constitution of India. However the grant of Anticipatory Bail is always after consideration of many factors by the Court.

Further the Accused has a right to file application before the Hon’ble Supreme Court if his application for Anticipatory Bail is rejected by the Sessions Court and the High Court.

Further to the grant of the Anticipatory Bail, the same can be cancelled if the accused breaches any conditions laid down at the time of granting the Anticipatory Bail. For example, if the person tampers with evidence or threatens the witnesses or the victim, repeats the offence, or commits a heinous crime, or has misused the liberty granted to him by becoming a threat to the society, or misappropriates huge amounts of public funds, or does not co-operate in investigation leading to seriously hampering the progress in the matter, or commits similar such acts, then his anticipatory bail order may be cancelled. Further an application to commit the person so released, to custody, can be made by the Complainant or the Prosecution also. The Anticipatory Bail can also be cancelled by the Same Court or the Higher Court if the Court or Prosecution finds new material or circumstances against the person so released.

The Apex court has laid down certain guidelines for issuing Anticipatory Bail which can be studied further from the following cases :

Gurbaksh Singh Sibbia and others vs. State of Punjab (AIR 1980 SC 1632) states that the Court must consider the following while deciding an application for Anticipatory Bail :

1. If the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
2. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made.
3. The nature and seriousness of the proposed charges,
4. The context of the events likely to lead to the making of the charges,
5. A reasonable possibility of the applicant’s presence not being secured at the trial,
6. A reasonable apprehension that witnesses will be tampered with
7. “The larger interests of the Public or the State” are some of the considerations which the Court has to keep in mind while deciding an Application for Anticipatory Bail.

In Bhardresh Bibinbhai Sheth V. State of Gujarat & Anr 5 2015 (9) SCALE 403, the court has held that    

1. Just because a charge of a graver nature has been added at a later stage, the Anticipatory Bail cannot be denied.
2. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the Complainant, on finding new material or circumstances at any point of time.”
3. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.”

Similarly Siddharam Satlingappa Mhetre V. State of Maharashtra – CRIMINAL APPEAL NO. 2271 of 2010 is an apt case for the study of Anticipatory Bail.