Anticipatory Bail
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The article seeks to critically analyse the landmark decision of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab. In this case, the Hon’ble Supreme Court laid down several guidelines while considering an application for granting anticipatory bail. These guidelines have been crucial to ensure that anticipatory bail cannot be used as a means to abuse the process of law and to grant sufficient discretion to the courts dealing with such applications. 

Introduction 

It is often said that ‘bail is the rule and jail is the exception’. This basically implies that a person who is accused of an offence must be set free on bail, unless there is an apprehension that such person might abscond if not detained or arrested. The primary object of arrest or detention is to ensure the smooth functioning of the legal proceedings and the availability of the accused whenever required during the proceedings. However, more often than not, we have witnessed various instances where people may be arrested or detained just to harass them or exert any undue influence. In the context of the same, the Hon’ble Supreme Court laid down certain guidelines for granting anticipatory bail to balance the interests of the accused as well as those of the prosecution in the criminal justice system. This case has been elaborately discussed in the present article hereafter, in light of the relevant legal provisions and judicial precedents. 

Concept of anticipatory bail

Before delving deep into the case, it is pertinent to understand the concept of anticipatory bail. Depending on the severity of the offence committed, a person may be arrested or given bail. Accordingly, the Code of Criminal Procedure, 1973 (‘CrPC’ or ‘the Code’) categorises offences into bailable and non-bailable offences. Section 2(a) of the Code provides that bailable offences are those offences which have been mentioned as bailable under the First Schedule or by any other law for the time being in force. All the other residuary offences have been categorised as non-bailable offences. The former usually comprises offences that are less severe in nature, whereas the latter usually involves much more severe offences.  

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One must understand that any offender who is charged with a bailable offence is mostly eligible for bail, except when such person fails to comply with the conditions of the bail bond, as has been provided under Section 436(2) of the CrPC. The question of granting bail or anticipatory bail arises in the case of a non-bailable offence. 

Section 438 CrPC

The term ‘anticipatory bail’ has not been defined in the Code. However, Section 438 of the Code specifically deals with the scope and conditions for granting anticipatory bail. 

It is also imperative to make reference to the 41st Law Commission Report, wherein the true object of the insertion of this provision was emphasised. The report stated that “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 detained in jail for some days”.

Sub-section 1 of the provision states that a person may make an application for anticipatory bail before the Sessions Court or the High Court if he has a ‘reason to believe’ or an ‘apprehension’ that he may be arrested for being falsely implicated for a non-bailable offence. It further states that if such a court deems fit, it may direct that the applicant be granted bail in case of arrest.

Sub-section 2 provides certain conditions that the court may impose while directing anticipatory bail. These conditions, though not exhaustive, include:

  • The person will be readily available for interrogation by the police whenever required.
  • The person will not threaten or influence any person or witness, directly or indirectly, to disable him from disclosing any relevant information before the police officer or the court.
  • The person may not travel abroad without the due permission of the concerned court.
  • Any other condition that can be imposed by the court under Section 437(3) of the Code.

Sub-section 3 provides for the procedure to be followed where a person has been arrested or detained, even when the court has directed anticipatory bail. It states that where the police officer arrests the person without a warrant or prepares the warrant while the person is in custody, the person must be released on bail. Secondly, where a magistrate takes cognizance of such an offence and decides that a warrant should be issued, a bailable warrant must be issued in accordance with the directions of the court directing anticipatory bail.

Lastly, sub-section 4 was inserted in 2018 through the Criminal Law (Amendment) Act, 2018. The Amendment bars the courts from granting anticipatory bail in offences of rape or gangrape of a minor woman under the age of twelve or sixteen years, as stipulated under Sections 376(3), 376AB, 376DA, and 376DB of the Indian Penal Code, 1860. 

Details of Gurbaksh Singh Sibbia v. State of Punjab (1980) 

  1. Case Name: Gurbaksh Singh Sibbia & Ors. v. State of Punjab 
  2. Equivalent Citations: (1980) 2 SCC 565, 1980 SCC (Cri) 465, 1980 Cri LJ 1125, AIR 1980 SC 1632
  3. Court: Hon’ble Supreme Court of India
  4. Bench: Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice N.L. Untwalia, Justice R.S. Pathak, and Justice O. Chinnappa Reddy
  5. Appellants: Gurbaksh Singh Sibbia, Sarbajit Singh
  6. Respondent: State of Punjab
  7. Date of the judgement: April 09, 1980
  8. Legal provision involved: Section 438 of the Code of Criminal Procedure, 1973

Facts of Gurbaksh Singh Sibbia v. State of Punjab (1980)

The case is related to the Minister of Irrigation and Power of the Punjab Government, Gurbaksh Singh Sibbia. He, along with other ministers, was accused of grave corruption. Anticipating their arrest, the ministers filed applications before the Hon’ble Punjab and Haryana High Court for anticipatory bail under Section 438 of the CrPC. Realising the importance of the matter, the single judge referred the case to the full bench of the High Court. The High Court dismissed the applications on the ground that the powers of the High Court to grant anticipatory bail were limited and had to be guided by Section 437 of the CrPC. These powers could be exercised only under certain special circumstances. Aggrieved by the decision of the High Court, the applicants preferred an appeal through a Special Leave Petition before the Hon’ble Supreme Court of India under Article 136 of the Indian Constitution. 

Issue raised before the Supreme Court

The issue before the Supreme Court was whether a straight-jacket formula could be applied to Section 438 of the CrPC, which has to be followed by the Court while granting anticipatory bail.

Contentions of parties in Gurbaksh Singh Sibbia v. State of Punjab (1980)

Contentions on behalf of the appellants

The first contention on behalf of the appellants was that denial of bail to a person who has not been convicted of an offence amounts to deprivation of his personal liberty. Thus, the Court should not lean towards unnecessary conditions being imposed on granting anticipatory bail under Section 438 of the CrPC. It was further contended that the legislative intention behind Section 438 was not to impose any unnecessary restrictions. 

Another important argument raised by the appellants was that even if there were any restrictions imposed under Section 438 of the CrPC, it would have been struck down as being violative of Article 21 of the Indian Constitution. Any unreasonable restriction on the power to grant bail would be violative of the personal liberty of the person seeking bail. Such a person has to be presumed innocent until proven guilty. 

Contentions on behalf of the respondents

The primary contention on behalf of the respondents was that anticipatory bail should be granted in exceptional cases wherein the applicant is able to prove that the arrest is anticipated for frivolous or malicious grounds. It was further argued that anticipatory bail is an extraordinary remedy, and therefore, whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under Section 437 or Section 439 of the CrPC after he is arrested.

Decision of the High Court

The Full Bench of the Punjab and Haryana High Court rejected the applications of the appellants after summarising the provisions of Section 438 of the CrPC. The summary was provided in the following manner:

  1. The power to grant anticipatory bail is of extraordinary character and must be used rarely;
  2. No provision of the CrPC empowers the court to grant blanket bail against all offences that are not committed or for which accusations are pressed against the person;
  3. All the limitations imposed under Section 437 of the CrPC are to be read into Section 438;
  4. In addition to these limitations, the applicant must prove a special case for the grant of anticipatory bail;
  5. The power under Section 438 cannot be exercised if a sufficient case for remand of the accused to the police custody or custody of the investigating authority is made under Section 167(2) of CrPC, or a reasonable case of collecting incriminating material from the accused under Section 27 of the Indian Evidence Act, 1872 is made;
  6. The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless;
  7. The discretion under Section 438 shall also not be exercised in cases of public importance, such as corruption, by using political powers; and
  8. The Court shall be satisfied that the accusations against the applicant are mala fide on the face of it in order to exercise the discretion provided under Section 438.

On the aforementioned grounds, the Punjab and Haryana High Court rejected the application for anticipatory bail.

Decision of the Supreme Court

The Supreme Court refused to accept the contentions raised by the Respondents as well as the conditions laid down by the Punjab and Haryana High Court, which it considered to be the true meaning of Section 438. It was held that it could not be accepted that there was a legislative oversight while drafting the provision of Section 438, as it is not an ordinary provision of law. It entails one of the most important rights of a person, the right to be presumed innocent until proven guilty. If the legislature intended to impose any restrictions on the power of granting anticipatory bail, it would have included the same under the provision itself.

Moreover, it was stated that the legislature was not penning down the provision on a clean slate. It relied on Section 437 and Section 439 while drafting Section 438. Moreover, the Parliament also relied upon the 41st Law Commission Report, wherein the power of a court to grant anticipatory bail was duly considered. The report concluded with the connotation that the court must have the discretionary power to grant anticipatory bail and ought not to be fettered with unnecessary conditions.

According to the Court, the legislature conferred wide powers of granting anticipatory bail on the Courts of Sessions and the High Courts for two reasons. Firstly, it would be very difficult to determine fixed conditions to be pursued by the courts to grant anticipatory bail. Secondly, to grant ample discretion to the courts to exercise such power. 

The Court also held that anticipatory bail is different from bail under Section 437 of the CrPC. A bail is important to protect the personal liberty of an individual and the presumption of his innocence. An anticipatory bail protects liberty at the time of arrest, whereas a bail under Section 437 can be granted after the arrest has taken place and the data is provided to the court. It is based on this data that the court can accept or reject the application for bail for a non-bailable offence. Whereas in the case of anticipatory bail, the court has the power to protect the liberty of an individual in the event of an arrest. 

The Court also clarified that it is not the case that an anticipatory bail has to be granted without imposing any conditions whatsoever. Section 438(2) of the CrPC gives the courts the power to impose such conditions as they may deem necessary while granting anticipatory bail.

Thus, the Supreme Court overturned the decision of the High Court and provided certain guidelines to be followed by the High Courts and the Courts of Session while granting anticipatory bail under Section 438, which have been discussed hereunder.

Guidelines issued by the Court

The Supreme Court issued certain guidelines regarding the scope of powers under Section 438 of the CrPC. The guidelines have been summarised as follows:

  1. Section 438 of the CrPC cannot be invoked on vague and unclear accusations. The provision can only be invoked when the applicant has the ‘reasons to believe’ that he may be arrested. Mere fear cannot be equated with the belief of the applicant. Thus, the applicant must bear in mind that the grounds on which anticipatory bail is prayed for are of such nature as can be objectively analysed by the Court. Mere accusations without due cause could not entitle a person to apply for an anticipatory bail.
  2. The object of Section 438 is to grant discretionary powers to the High Court or the Court of Session, as the case may be. Thus, such a court cannot leave the question to be decided by a Magistrate as stipulated under Section 437 of the CrPC. Such an action would defeat the very purpose of the provision.
  3. The filing of an FIR before the application for anticipatory bail is not a condition precedent. It may be applied for even if the applicant has concrete reasons to anticipate an arrest.
  4. Even if an FIR has been filed against such a person, he can still be granted an anticipatory bail, provided that he has not been arrested.
  5. If the person has been arrested, he is not entitled to be granted anticipatory bail. In such a case, the person has to apply for bail either under Section 437 or Section 439 of the CrPC, as the case may be.
  6. Apart from these guidelines, the Supreme Court accepted one view of the High Court, i.e., a blanket anticipatory bail cannot be granted in cases wherein the person has no proper reason to believe or anticipate an arrest. A blanket anticipatory bail means an order that serves as blanket protection against arrest for any offence whatsoever. Such an order would cause grave injustice to the power of the investigating agency and, hence, would be against the public interest. Thus, blanket anticipatory bail cannot be issued. 

Analysis

The guidelines laid down by the Hon’ble Supreme Court in the above-mentioned case raise certain questions for consideration, which have been discussed hereafter.

Discretion of the court

It is noteworthy that sub-section 1 of Section 438 clearly uses the phrase ‘if the court deems fit’, thereby signifying the wide discretion of the Sessions Court or High Court in granting anticipatory bail. The concerned court has wide discretion and may reject the application of anticipatory bail if the situation warrants, in the view of the court. Where it appears to the court that the applicant may abscond during the trial when required or has a previous history of absconding, the court may not allow the grant of bail in such a case.

Though wide discretion has been given to courts in this regard, yet they are compelled to follow the principles of natural justice while deciding the application. In the case of State of Maharashtra v. Vishwas Shripati Patil (1978), the Hon’ble Bombay High Court has held that the court must record reasons in writing while granting an anticipatory bail. This view has also been affirmed by the Hon’ble Supreme Court in State of Maharashtra v. Dhanendra Shriram Bhurle (2009).

Apprehension to be reasonable

It has already been emphasised enough that the applicant must have a reasonable belief of apprehension before filing for anticipatory bail under Section 438 of the CrPC. There must be a reasonable apprehension or anticipation of arrest and not a mere fear on the part of the applicant. The reasonableness of the anticipation is required to be determined by the courts. Yet, one observation that can be made from the guidelines of the Court as well as various other cases, including Suresh Vasudeva v. State (1977), is that there need not be a formal filing of the case with the police in the form of an FIR to cause an anticipation of arrest. Such anticipation, if reasonable, can occur even before the filing of the FIR. 

Duration for grant of anticipatory bail

Once anticipatory bail is granted by the concerned court, the direction of the court remains effective until the conclusion of the trial. Recently, there have been multiple instances wherein the courts have held that bail must not be for a limited duration. This view has been reaffirmed by the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra (2010) as well as Sushila Aggarwal v. State (NCT of Delhi) (2020). In Sushila Aggarwal, a five-judge bench examined this issue and gave views consistent with the Gurbaksh Singh case. However, it overruled the Siddharam Satlingappa Mhetre case on the point that no restrictive conditions could be imposed as the same was violative of the provision itself.

No absolute direction to grant bail

There cannot be an absolute direction by the courts to grant anticipatory bail. In Srikant Upadhyay v. State of Bihar (2024), the Court held, “Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule”. The Court made this statement in the context of an applicant who was defying the orders of the court, thereby affecting the process of trial. It is already settled through various decisions that the courts must refrain from granting blanket protection to applicants seeking anticipatory bail. Therefore, one may infer that this opinion of the court is in line with the case of Gurbaksh Singh Sibbia.

Conclusion

In a country like India where political rivalry has no leaps and bounds, the provision of anticipatory bail comes as a rescue to innocent people who may be harassed by influential members of society. Yet, at the same time, it is also imperative that the provision is not misused by actual offenders committing serious offences and escaping due process of law. In this sense, the guidelines laid down in the case become crucial in the justice delivery system and act as a guiding light for judicial authorities while examining an application for anticipatory bail. It enables the courts to balance the interests of innocent applicants, who are victims of frivolous complaints, with those of offenders who try to escape under the garb of this provision. These guidelines have time and again been emphasised, applied, and affirmed by the courts, as has been discussed above through various judicial pronouncements. 

Frequently Asked Questions (FAQs)

What is anticipatory bail?

An anticipatory bail is a bail that can be granted by the High Court or the Court of Session before the arrest of the applicant. The applicant has to prove apprehension of arrest in a non-bailable case to make an application for anticipatory bail. It shall become effective only in the event of the arrest of the person, not before that. It is pertinent to note that such an application can be made only before the arrest takes place, as the trial court and the Magistrate have been provided the power to grant bail after the arrest of the person.

What is the difference between an application for bail under Section 437 and Section 438 of the Code?

Section 437 of the CrPC provides the power to the courts other than a High Court or a Court of Session to grant bail in the case of a non-bailable offence. Section 438 of CrPC deals with the power of the High Court or the Court of Session to grant an anticipatory bail in cases wherein the applicant has an apprehension of arrest.

A bail under Section 437 can be granted only after the applicant has been arrested and not before that. However, a bail under Section 438 can be granted only before the person has been arrested, although the bail shall be effective only upon the event of arrest.

What is the relevance of the Supreme Court case of Gurbaksh Singh Sibbia v. State of Punjab?

The Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab clarified the position of Section 438 of the Code. The Punjab and Haryana High Court had laid down certain limitations on the power of the court to grant an anticipatory bail, which were not included by the legislature itself. The Supreme Court set aside these limitations and held that the High Court and the Court of Session have a wide discretionary power to grant anticipatory bail, as it is a necessary right for an individual to be presumed innocent until proven guilty. Further, the Supreme Court also issued certain guidelines to be followed by the courts while exercising such power.

Does the Session Court and High Court have concurrent jurisdiction for considering an application of anticipatory bail?

Section 438 of the CrPC gives both the High Court as well as the Court of Session the jurisdiction to entertain an application for anticipatory bail. However, it is not mandatory to file the application before the Court of Session first and approach the High Court later. The Hon’ble Allahabad High Court in Onkar Nath Agarwal v. State (1976) has held that the applicant is allowed to approach either the High Court or the Court of Session, under whose territorial jurisdiction the matter falls.

Which place has the territorial jurisdiction to entertain an application for anticipatory bail?

There is often confusion regarding the territorial jurisdiction of anticipatory bail as to whether it has to be filed at a place where the FIR has been registered or where the arrest is anticipated. The position has been settled in the case of Pritam Singh v. State of Punjab (1980), wherein the Hon’ble Delhi High Court held that it could also be filed where the arrest is anticipated, irrespective of the FIR being registered in another jurisdiction.

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