This article is written by Anjali Dixit.
Recently, the refusal of anticipatory bail to former Union Minister P Chidambaram by the Supreme Court made headlines. Chidambaram appealed to the Supreme Court against an order of the Delhi high court passed on August 20, 2019, refusing anticipatory bail to him over allegations of corruption in the INX media case. The Apex Court dismissed his appeal stating that “anticipatory bail cannot be granted as a matter of right. It has to be exercised sparingly, especially in case of economic offences which constitute a class apart”
This article will trace the journey of the law on anticipatory bail since its inception to the present day in the context of its judicial interpretations.
Bail is essentially freedom from the restriction on the liberty of an accused. It is a temporary release of a person on some security of his appearance. Presumption of the innocence of an accused until proven guilty is a fundamental canon of criminal jurisprudence. The provisions of bail in the Criminal Procedure Code, 1973 (CrPc) provides substance to this principle by creating a balance between the personal liberty of an accused and the interest of society. Bail is a matter of right in bailable offences as provided under section 436 of the CrPc and a matter of judicial discretion in non-bailable offences under Section 437 and 439 of CrPc. Where bail under Section 436,437 and 439 can be granted only after an arrest, Section 438 provides for a pre-arrest bail also commonly known as anticipatory bail. Anticipatory Bail refers to the grant of bail in anticipation of arrest.
The concept of anticipatory bail gained momentum when the tendency to falsely implicate an individual in order to injure their reputation was recognized. There was a rise in instances, where reputed individuals were falsely implicated by their political rivals, in order to humiliate and harass them by getting them arrested. Personal liberty of an individual is a valued facet of his right to life and must not be put in jeopardy. Besides this, there are instances where an accused is not likely to abscond to avoid trial, does not have criminal antecedents and is not likely to tamper with evidence. The need for protecting the liberty of such men gave birth to the concept of pre-arrest bail. The essence of anticipatory bail is well encapsulated in the words of Y.V. Chandrachud C.J, who observed as:
“A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom so to give full play to the presumption that he is innocent.”
The Law Commission in its 41st report observed “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in a false case for the purpose of disgracing them or for the purpose of getting them detained in jail for some days”
Contents of Section 438
The term anticipatory bail is nowhere used in the CrPc, rather it provides for a direction to grant bail to a person apprehending arrest. Section 438 of CrPc 1973 provides that where a person has reason to believe, that he may be arrested on the accusation of committing a non-bailable cognizable offence, he can apply to the Court of Session or the High Court for the grant of bail in case of such arrest.
The Court may grant or refuse the bail after taking into consideration, among other things, factors like; antecedent of the accused(including imprisonment undergone on conviction in a cognizable offence),nature and gravity of offence, possibility of fleeing from justice and the probability of accusations being made to injure or humiliate the applicant.
The Court may also grant an interim bail to the applicant and cause a notice of not less than seven days along with a copy of the order to be served on the Public Prosecutor and the Superintendent of Police, in order to give a reasonable opportunity to the Public Prosecutor to present his case when the application is called on for final hearing by the Court.
If on an application made to Court by the Public Prosecutor in this regard, the Court considers the presence of applicant necessary in the interest of justice at the final hearing of the application, it shall be obligatory for him to be present in Court.
The High Court or the Court of session in case of grant of bail to the applicant, may include conditions in the light of facts and circumstances of the case like; the person shall make himself available to the police officer as and when required for the purposes of investigation, he shall not make directly or indirectly to any person acquainted with the facts of case, any threat, inducement or promise, in order to dissuade him from disclosing such facts to the Court or the Police officer and that the person shall not leave the country without permission of the Court. Further, the Court may impose any condition as provided under Section 437 (3) of CrPc.
In the event of arrest of a person who has been granted anticipatory bail by the court, he shall be released as soon as he is prepared to furnish bail to the Police officer. When a Magistrate decides to issue a warrant for arrest in such a case, a bailable warrant shall be issued.
Exceptions to the law
Criminal amendment bill 2018 added Clause 4 to Section 438 and created exceptions to the law. According to the said clause, anticipatory bail cannot be granted to a person accused of an offence of committing rape on a woman under 16 years of age, under 12 years of age, gang rape on a woman under 16 years of age and gang rape of a woman under 12 years of age, punishable under Section 376(3), 376 AB, 376 DA and 376 DB respectively of the Indian Penal Code, 1860.
Further, Section 18 of the Scheduled Caste and Scheduled tribes (Prevention of Atrocities Act) 1989, prevents the grant of anticipatory bail in respect of offences committed under Section 3 of the Act.
Decoding Section 438 through judicial interpretations
The characteristics of Section 438 rest on certain terms used in the provision that convey the intention of the legislature and have guided the Courts in the interpretation of the Section. A plethora of cases over the due course of time have evolved the practice of grant of anticipatory bail by Courts. However, in Gurbaksh Singh Sibbia v State of Punjab was the first such case wherein the Supreme Court laid down the principles of a grant of anticipatory bail with meticulous details.
In Gurbaksh Singh Sibbia v State of Punjab, grave allegations of corruption were made against the then Minister of Irrigation and power in the Government of Punjab. Sri Gurbaksh Singh Sibbia filed an application before the Punjab and Haryana High Court praying for the grant of anticipatory bail which was refused by the Court. The Court held that the power under Section 438 is extraordinary and must be exercised sparingly in exceptional cases only. It observed that the applicant must make out a special case for the grant of bail under this Section. It further observed that in case of a reasonable demand made by the investigating agency for remand of accused in police custody, power under Section 438 should not be exercised. The court held that in order to balance public interest, the discretion should not be exercised by the court in serious economic offences involving blatant corruption.
The applicant appealed against the order in the Supreme Court. A 5 Judge Constitution bench was constituted which reversed the decision of the High Court and laid down expansive guidelines on several crucial points, which are as follows:
“Reason to believe”
The use of the term ‘Reason to believe’ by the legislature lends credence to the fact that the Court will grant anticipatory bail to the applicant only when he has reason to believe that he may be arrested on the accusation of a non-bailable cognizable offence. This reason to believe must be founded on reasonable grounds and not mere suspicion. There must be enough substance on the grounds that led to this belief of the applicant. The application must set out specific facts and events that led to the applicant forming that belief. The reasons cannot be sham or evasive. Mere fear is not ‘belief’, thus a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested, is not enough. Such belief must be founded on some tangible grounds which the court can examine objectively.
The legislature grants wide discretion to the High Court and the Sessions Court by including the term “may, if it thinks fit” in Section 438. The Court held that this discretion must not be narrowed down by introducing conditions into the statute not originally found, as done by the High Court. Judicial discretion in matters of anticipatory bail must be exercised in light of the facts and circumstances of every individual case and by imposing conditions that the case may warrant. Generalizations of any sort like “economic offences’ or ‘case of blatant corruption’ as made by the High Court destroy the very purpose of discretion granted to Courts by the legislature. Thus, there can be no straitjacket formulae for the exercise of power under Section 438. Any attempt to lay down a cast-iron rule by making generalizations will hamper the interest of the applicant adversely.
Balancing personal liberty and investigational powers of the Police
The Apex Court held that there is substantial public interest involved in the investigational powers of police, but the Court must strike a balance between the powers of the police and personal liberty of the applicant. The refusal of bail directly affects the freedom of movement of an individual, which has been held to be a component of Right to life under Article 21 of the Constitution of India. Thus, it is the task of the Court to balance the two interests in the exercise of power under Section 438. The imposition of usual conditions on the applicant of cooperating with the investigation agency and not tampering with the evidence while granting an order under Section 438, will ensure uninterrupted investigation thereby preventing the conflict in interest.
Power under Section 438 being extraordinary in character
The Apex Court held that the conclusion of the High Court that power under section 438 is extraordinary in nature is unjustified. The provision is extraordinary only in the sense that usually bail is applied for under Section 437 and Section 439 of CrPc. But that does not lead to the conclusion that the power has to be exercised sparingly. The Court reiterated its position that power under Section 438 should be exercised in light of the facts and circumstances of the specific case. As no two cases are similar, no formulae can be derived for the grant of bail in such cases.
No Blanket Order to be issued
Section 438 does not contemplate a blanket order of anticipatory bail. The applicant cannot be directed to be released on bail for whatever offence whenever committed. The application must make out specific accusations against which relief is prayed for. A blanket order without the specifying the specific offence or offences for which bail is granted will interfere with the right of Police to investigate the matter.
No Anticipatory Bail after Arrest
The Court held in clear terms that provision of anticipatory bail is to grant bail before the arrest of the applicant. Once the applicant is arrested, he can apply for bail under Section 437 or 439 of the CrPc but not under Section 438.
Registration of FIR, not a condition precedent
The provisions of Section 438 do not require the registration of an FIR against the applicant. The use of the terms ‘reason to believe’ indicates that merely reasonable grounds for the likelihood of arrest may lead the Court to grant bail.
Considerations to be kept in mind
While the Court clarified that considerations are numerous, it did prescribe a few considerations like; the nature and seriousness of the charges, a reasonable possibility of the applicants presence not being secured at the trial, reasonable apprehension that witnesses will be tampered with, apprehension of accused being capable of influencing investigation and the large interest of the public and the state, that the court has to keep in mind while deciding a case under Section 438.
Article 21 of the Constitution of India,1950
Section 438 seeks to protect the personal liberty of an individual which is a component of the right to life and liberty under Article 21 of the Constitution. The test of fairness is implicit while invoking the powers under Section 438 and the Courts cannot impose an unreasonable limitation on the liberty of an individual while determining the scope of the provision. Any such limit would be volatile of Article 21.
On-time period of bail
The Court held, it is not necessary to limit the time period of bail and usually it should continue till the end of the trial. However, the Court may, if there are reasons for so doing, limit the time up to a reasonable period after FIR and direct the applicant to obtain an order of bail under section 437 or 439. The normal should be to not limit the order under section 438 in point of time.
Judicial Decisions after ‘Sibbia’
Majority of the judgments of the Apex Court after ‘Sibbia’ have reiterated the law laid down in the case. However, there are also decisions which express slight divergence from the settled law.
In Samunder Singh v. State of Rajasthan  the Supreme Court observed that High Courts should not grant anticipatory bail to a person involved in a dowry death case as a matter of course.
In Directorate of Enforcement v. P.V Prabhakar Rao, a ‘urea scam case’ involving huge amount, the relief of anticipatory bail was refused by the Supreme Court. The Court held that the material collected disclosed an ‘accusing finger’ against the respondent and he also contributed to non-completion of the investigation. In such a case, exercise of power under section 438 is not justified.
In-State (CBI) v. Anil Sharma anticipatory bail was refused to an MLA and son of a former Union Minister for Telecommunications on the ground that in cases of corruption in high places where accused has held high offices, he may wield wide influence and the investigation could suffer. The Court Observed “In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed Succession of such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated”
In Sidhram Mhetre v. State Of Maharashtra , the Supreme Court set aside the order of the High Court refusing anticipatory bail to the appellant and reiterated its position on the grant of anticipatory bail relying on ‘Sibbia’. It was held that custodial interrogation should be avoided in a case where the accused has joined the investigation, willing to cooperate and there is no likelihood of his fleeing away from trial. The Court further clarified that the power under Section 438 is not extraordinary to mean that it should be exercised only in extraordinary or rare cases. The appellant was granted bail with the direction to join the investigation and fully cooperate with the investigation agency.
In Bhadresh Seth v. State of Gujarat (2016), The division bench of the Supreme relied on principles laid down in ‘Sibbia’ and ‘Mheter’s’ case and granted bail to the appellant noting that there is no possibility of his fleeing from justice and appellant has participated in proceedings during period of investigation. The Bench further noted that as observed by the Constitution Bench of this Court in ‘Sibbia’, Section 438 calls for a liberal interpretation as it is conceptualized in Article 21 grants the right to life.
In P Chidambaram v. Directorate of Enforcement 2019, the appellant, a former Union Minister, appealed against an order of the Delhi High Court refusing to grant anticipatory bail in a case alleging money laundering in FDI transaction of INX Media. The appellant was accused of receiving ‘kickbacks’ for FIPB clearances for FDI of INX media. The High Court of Delhi refused the application observing “It is a classic case of money laundering”. The learned judge noted “considering the gravity of offence and the evasive reply given by the appellant while he was under the protective cover of the Court are the twin factors which weigh to deny pre-arrest bail to accused”. The division bench of the Supreme Court relied on its decision in the case of State (CBI) v. Anil Sharma  and held that grant of pre-arrest bail at this stage would elude the success of investigation as the accused knows he is protected by the order. The Court further noted that the grant of pre-arrest bail in economic offences would definitely hamper the investigation. The bench observed “Anticipatory Bail cannot be granted as a matter of right. It has to be exercised sparingly, especially in economic offences which constitute a class apart”
Conflict between rulings of ‘Sibbia’ and ‘Chidambaram’
The observation made by the Supreme Court while refusing anticipatory bail to P Chidambaram has created unrest in the legal fraternity. The generalization made by the court with respect to economic offences that they constitute a ‘class apart’ deeply undercut the guideline laid down by the Court in ‘Sibbia’, that any generalization of such sort destroys the very purpose of grant of judicial discretion by the legislature. Further, the Court also held that power under Section 438 has to be exercised sparingly, whereas it has been observed by the Supreme Court in ‘Sibbia’ and reiterated in ‘Mhetre’ and ‘Bhadresh Sethi’ that power is extraordinary only in the sense that bail is usually applied under Section 437 or 439of CrPc. Considering the decision in Gurbaksh Singh Sibbia v. State of Punjab was by a 5 judge constitution bench of the Court, the largest bench ever to rule on the subject of anticipatory bail, it forms a binding precedent. Judicial discipline warrants that binding precedents must be followed until overruled by a larger bench. The Apex Court reiterated the settled legal position in Subash Chandra and another v. Delhi Subordinate Services Selection Board and another that a bench of smaller strength taking a contrary view to the Constitution Bench is per incuriam (decision passed through lack of care which need not be followed by a lower Court). The division bench in the case of P Chidambaram ought to have decided the matter in light of particular facts and circumstances of the case as directed by the Supreme Court in ‘Sibbia’ rather than on vague generalizations.
The laudable object of preservation of personal liberty of an individual until proven guilty drove the lawmakers to insert Section 438 in the Criminal Procedure Code. A crime is committed not against an individual, but against the interest of a society and therefore a society has a vital stake in a due investigation of a crime. These two competing interest of personal liberty and public interest have to be cautiously balanced by courts while exercising their wide discretion under Section 438. The scope and ambit of the law on anticipatory bail has been elucidated by the judiciary time and again. It is in larger public interest that Section 438 is interpreted in the light of the test of fairness under Article 21, in order to keep arbitrary and unreasonable limitations on personal liberty at bay. Further, inconsistency in successive judicial decisions on the law is a cause of concern, as it lays the law bare for misuse by the high and mighty and leaves little room for clarity on the settled legal position on anticipatory bail.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
 P Chidambaram v. Directorate of Enforcement Criminal Appeal No.1340 of 2019 (Supreme Court,05/09/2019)
 Gurbaksh Singh v. State of Punjab, (1980) 2 SCC 565
 41st Law Commission of India Report, Code of Criminal Procedure,1898 available at http://lawcommissionofindia.nic.in/1-50/Report41.pdf last seen on 08/10/2013.
 Section 438, The Criminal Procedure Code, 1973
 (1980) 2 SCC 565
 Vaman Narayan Ghiya v State of Rajasthan, AIR 2009 SC 1362
 Samunder Singh v. State of Rajasthan (1987) 1 SCC 466
Directorate of Enforcement v. P.V Prabhakar Rao (1997) 6 SCC 647
State (CBI) v. Anil Sharma (1997) 9 SCC 187
 Sidhram Mhetre v. State Of Maharshtra 2011 SC (2011) 1 SCC 694
 Bhadresh Seth v. State of Gujarat, Criminal Appeal No.1134-1135 of 2015 (Supreme Court,01/09/2015)
 Supra 1
 Supra 10
 Supra 13
 Supra 5
 Subash Chandra and another v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458