Author: Ms. Yuvanshi Kulshreshtha, 4th Year B.A. LL.B. (Hons.), Jagran Lakecity University, Bhopal
The word ‘bail’ has not been defined anywhere in The Code of Criminal Procedure. The meaning of ‘Bail’ is freedom from the restrictions imposed on a person’s freedom. The law relating to Bail in India derives its essence from the principle that an accused shall be presumed innocent till proven guilty. Thus, the Code on Criminal Procedure provides for Right of Bail in following circumstances:
- In what cases bail to be taken (Section 436):- Under this section it is laid down that if a person accused of a bailable offence is arrested or detained without warrant by a police officer, he shall have the right to be released on bail.
- where right to bail is a matter of judicial discretion under non-bailable offences as dealt under Section 437 and Section 439 of the Code- If a person accused of or suspected of commission of non-bailable offence is arrested or detained with warrant by police officer, he may be released on bail but such person may be denied right to bail if the Court has reason to believe that he has been guilty of offence punishable with life imprisonment or death or he had been previously convicted for an offence punishable with life imprisonment or death.
- Section 438 of the Code provide for a special kind of bail prior to arrest which has come to be known as ‘anticipatory bail’- If a person has apprehension that he may be arrested on accusation of having committed a non-bailable offence, he may apply for Bail to the High Court or Sessions Court.
One must have come across the term ‘Anticipatory Bail’ a plethora of times. However, it is important to note that this term is defined nowhere in the Code. In fact, Section 438 of the Code on Criminal Procedure does not use this term though it extensively deals with it by conferring power on the High Court and Session Court to grant bail to any person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence while considering such other factors which have been discussed in subsequent part of the article. The marginal head to Section 438 of the Code on Criminal Procedure reads as ‘Direction for grant of bail to a person apprehending arrest.’ It is quite clear from the term itself that this kind of bail is granted by the Court when a person anticipates his arrest. The Merriam Webster Dictionary defines it as ‘the act of looking forward.’ The Cambridge Dictionary defines it as ‘in preparation of something happening.’ The word ‘Anticipation’, in common parlance, means a prediction or expectation. Thus, it can be inferred that anticipatory bail is granted on the applicant’s apprehension of arrest.
II. History, Object and Importance
Historically speaking, the Code of Criminal Procedure, 1898 did not contain any specific provision related to anticipatory bail. It was only after the Law Commission of India in its 41st Report pointed out the importance of incorporating provision for anticipatory bail in the Code. It considered the question whether courts have the power to grant anticipatory bail. It was observed that “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.”
Subsequently, the Law Commission put forth the suggestion of accepting the above recommendation in its 48th Report.
II.1. Object of the Provision
This provision intends to safeguard the right to life & personal liberty of people with an object to provide them with remedy against frivolous detention and disgrace. The objective behind this provision can be better understood with the help of the opinion of Y.V. Chandrachud C.J in the landmark case of Gurbaksh Singh Sibbia v. State of Punjab.
The facts of the Case are that Gurbaksh Singh Sibbia, Minister of Irrigation & Power in Punjab was facing grave allegations of political corruption. Due to which he filed application for grant of anticipatory bail in event of his arrest under Section 438 to the High Court. The High Court dismissed the application. But on special leave to appeal, the Supreme Court while grating him bail under Section 438 observed the following:
“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.”
Also, in the case Balchand Jain v. State of M.P., it was held that that Section 438 intends to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the whim of unscrupulous people.
III. Analysis of Section 438
III.1. Essentials of Section 438
- Reasonable apprehension of arrest for a non-bailable offence
Section 438 states that a person intending to apply for anticipatory bail must have a reasonable apprehension that he may be charged with a non-bailable offence. The phrase ‘reasonable apprehension’ means that the apprehension must arise from some solid reasonable grounds. Mere fear of arrest does not amount to reasonable apprehension of arrest.
According to Section 438 (1A), an application for anticipatory bail is to be made to High Court or Sessions Court. It was held in Chhajju Ram v. State of Haryana, that it is ordinarily presumed that an application for anticipatory bail shall be first made in Sessions Court. Where such application is rejected by Sessions Court, a fresh application can be made to High Court. It is clear from this observation of the Court that there is no bar in making an application to the higher court.
- Discretion of Court
It is evident from the words ‘it thinks fit’ that Section 438 confers wide discretionary powers on the Courts. No restrictions on the exercise of this power has been indicated in the Section.
- Grounds for consideration
The Court shall take into consideration following grounds before granting anticipatory bail:
i. the nature and gravity of the accusation;
ii. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court for any cognizable offence;
iii. the possibility of the applicant to flee from justice; and.
iv. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested
- Conditions that may be included in the anticipatory bail
Further, the Court may include following conditions if it thinks fit while granting anticipatory bail:
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 make any inducement, threat or promise to any person acquainted with the facts of the case with the intention of dissuading him from disclosing facts to the Court or to police officer;
iii. a condition that the person shall not leave India without the permission of the Court;
iv. such other conditions as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
- Notice to the public prosecutor and superintendent of police
Section 438(1A) provides that where an interim order is granted a notice be given to the Public Prosecutor and the Superintendent of Police, within seven days, with a view to give the Public Prosecutor a reasonable opportunity of being heard before the final disposal of application.
- Presence of applicant
It is mandatory for the person seeking anticipatory bail to be present at the time of final disposal of his application.
III.2. Principles relating to grant of anticipatory bail
The Supreme Court in the landmark case of Gurbaksh Singh Sibbia v. State of Punjab cleared all ambiguity revolving around principles relating to grant of anticipatory bail.
- The distinction between an ordinary bail and anticipatory bail is that the former occurs after arrest, the latter occurs prior to arrest.
- The High Court and Sessions Court have been conferred with wide discretionary powers and thus they are free to either grant or refuse bail on the particular facts and circumstances of the case.
- The Court must apply its own mind and decide the question without leaving it to be decided by the Magistrate under Section 437, as and when occasion arises.
- The applicant must convince by disclosing facts and events that he has reasons to believe the existence of which is sine qua non of the exercise of power by the Court.
- An order of bail can be passed conforming to the requirements of this section and imposing any of the conditions that have been laid down in the provision.
- If it appears that there is some ulterior motive to injure and humiliate the applicant, an order for anticipatory bail shall be passed. But if it appears that an application has been made only to flee from justice, an order shall not be passed.
- Filing of a FIR is not a condition for exercise of this power. The power conferred under this Section is exercisable so long as the applicant is not arrested even after filing of FIR.
- An order passed for anticipatory bail does not directly or indirectly take away the right to investigate from the police. In fact, the applicant should assist in the process of investigation by making himself available for interrogation by a police officer.
III.3. Blanket order granting Bail
A blanket order should not generally be passed. It is a mandatory prerequisite specified in the section that the applicant should have a reasonable belief that he may be arrested. It is to be borne in mind that a blanket order should not be passed as it would serve as a blanket to cover or protect any kind of unlawful activity.
In Vaman Narain Ghiya v. State of Rajasthan, it was held that Section 438 is a means to secure individual liberty, it is neither a passport to one’s crimes nor a shield against any crimes.
The object of provision contained in Section 438 is protection of an individual’s right to life and personal liberty from frivolous charges and arrest. This kind of bail provides an opportunity to a person to protect himself against arrest when he has reasonable apprehension of getting arrested.
Special powers have been conferred only on High Court and Sessions Court for directing a person on bail prior to his arrest which is commonly referred to as anticipatory bail. However, an order for anticipatory bail is granted after vigilant and cautious scrutiny. The learned judges of High Court and Session Court allow the application for only after careful examination and consideration of the facts and circumstances of the case. Further, the serving of notice to the Public Prosecutor also ensures that the other party has a say in the matter and that the matter is not disposed of ex-parte.
Restrictions and conditions imposed by the court while granting the anticipatory bail ensure supervision and control over the applicant in order to avoid abuse of the provision and upholding the criminal justice system.
 Law Commission of India, 41st Report, September 1969, ‘The Code of Criminal Procedure, 1898’Volume I’, para 39, 320-321.
 Law Commission of India, 48thReport, July 1972, ‘Some question under the Code of Criminal Procedure Bill, 1970’, para 31.
 AIR 1980 SC 1632.
 AIR 1977 SC 366.
 Cri LJ 608 (1978)
 R.V. KELKAR, CRIMINAL PROCEDURE (6th ed., 2017), 319.
 Section 438(1B), The Code of Criminal Procedure, 1973, No. 02 (India).
 (2009) 2 SCC 281.
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