ANTICIPATORY BAIL UNDER CRPC

The most important purpose of arrest is to secure the presence of the accused person at the time of his enquiry or trial and to ensure that he is available to receive sentences on conviction. However if this purpose can be achieved without forcing detention on the accused during the enquiry or trial it would be an ideal blending of the true apparently conflicting claims, namely freedom of the individual and the interest of Justice.

The mechanism that effectively achieves the above purpose is bail.

Bail is not defined under the CRPC but in general it means “ a kind of security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond.”

Depending upon the sage of the criminal matter, there are commonly three types of bail in India:

Regular bail- A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.

Interim bail- This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.

Anticipatory bail- Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence.

Q. What do you understand by the term Anticipatory Bail ?

The term Anticipatory Bail has not been defined in the Code of criminal Procedure but reading section 438, the term dying declaration may be defined as follows: -

Anticipatory bail or pre arrest bail is taken prior to arrest. However, it becomes effective from the time of arrest. As the word 'anticipation' itself means, it is an expectation of some sort of accusation by the applicant. The provision in law a laid down under section 438 of Criminal Procedure Code, 1973.

The anticipatory bail can be granted when the criminal court has taken cognizance, and summons and warrant has been issued by the court.

The anticipatory bail under section 438 may be granted to government servant, minors, women, old and infirm persons, handicapped persons having permanent disability, persons who are involved in petty cases, person who are likely to be harassed in police custody.

In Balchand Jain vs State of MP 1976, it was held that when the court grants ‘anticipatory bail’ what it does is to make an order in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and therefore it is only on arrest that the order granting ‘anticipatory bail’ becomes operative.

The section 438 makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the magistrate. The issuance of warrant by the magistrate against a person justifiably gives rise to such an apprehension and well and entitles a person to make a prayer for ‘anticipatory bail’. Issuance of a summon for appearance also entitles an accused to apply for anticipatory bail, held in the case of P.V Narasimba Rao v. State, 1997

It has also been held in Thayyanbadi Methal Kunbiraman v. S.I. of Police, 1985 that ‘anticipatory bail’ cannot be granted to a person to do something which is likely to be interpreted as commission of a crime even if the offender intended it as something in exercise of his rights.

438. 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).

Q.Why there is need of Anticipatory bail under Code of Criminal Procedure?

Ans. The law commission in 41st Report, considered the need for such provision and observed: 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 them detained in jail some days.

In recent times, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody remain in prison for some days and then apply for bail.

In Its subsequent report, the law commission expressed the view that the power to grant anticipatory bail should be exercised in very exceptional case.

The law commission in 48th Report further observed: In order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should be made only an interim one. The directions can be issued only for reasons to be recorded, and if the court is satisfied that such direction is necessary in the interest of justice.

Q.What are the essentials of anticipatory bail?

Ans. The essentials of anticipatory bail are apended below:

Reasonable apprehension of arrest for a non- bailable offence:

Section 438 (i) confers on the High court or Court of session the power to grant “anticipatory bail” if the applicant has reason to believe that he may be arrested on the accusation of having committed a “non bailable offence”.

In Suresh Vasudeva v. state, 1978 and Joseph v. Collector of customs, 1982 it was held that, if the offence is non bailable, it is immaterial for the purpose of section 438 whether the offence is cognizable or non-cognizable or whether it is one under the IPC or under any other law like Customs act 1962.

In Gurubaksh Singh Sibbia v. State of Punjab, 1980, it was held that there is no restriction on granting “anticipatory bail” merely because the alleged offence is one punishable with death or imprisonment for life. Section 438 does not require that the offence in respect of which the anticipatory bail is asked for, has been registered with the police. The filing of FIR is not a condition to the exercise of power under section 438.

The use of expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a “non- bailable offence.

The court will examine objectively, because it alone can determine whether the applicant has reason to believe that he may be so arrested. But in this determination the complaint it does not have the right to argue against the grant of anticipatory bail as in all probability such a complainant would be swayed with emotions to seek revenge, held in Indu Bala v Delhi Administration, 1991

In Ramsevak v. State of MP, 1979 it was held that if the apprehension of a person continues even at the stage of committal court proceedings, there is nothing in section 438 to debar such person for applying for anticipatory bail in case of his apprehended commitment under Custody. On such an application, High court or court of session may pass an order under section 438 directing the committing Magistrate not to commit the person in custody.

Concurrent jurisdiction of High court and Sessions court

According to section 438 (i), an application for “anticipatory bail” can be made to the High court or court of session, however normally it is to be presumed that the court of session would be first approached for grant of anticipatory bail.

In the case Onkar Nath Agrawal vs. State, 1976 the full bench of the Allahabad High court held that the bail under section 438 may be moved to the high court without the applicant taking recourse to the court of session. If the application filed in the court of session for anticipatory bail is rejected, the applicant can again approach the high court under section 438 (i) as there is no bar to do so.

As bails are against arrest and detention, an appropriate court within whose jurisdiction the arrest takes place or is apprehended or is can contemplated will also have jurisdiction to grant bail to the person concerned. The High court or Court of session can entertain application, even though the first information report (FIR) might have been registered at a place within the jurisdiction.

Q, What are the conditions of anticipatory bail?

Ans. The high court or court of session while granting anticipatory bail may impose conditions as mentioned in section 438 (2).

• that the person shall make himself available for interrogation by a police officer as and when required;

• 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;

• that the person shall not leave India without the previous permission of the Court;

• such other conditions as per section 437(3).

The conditions mentioned in that sub section are only illustrative and the court may impose other conditions, if it thinks fit, with a view to strike a balance between the individual’s rights to personal freedom and the investigational rights of the police.

In Gurbaksh Singh Sibbia v. State of Punjab, 1980 it was held that, while granting anticipatory bail the court may direct that the order of anticipatory bail will remain in operation only for a week so after the filing of the FIR in respect of the matters covered by the order. The applicant in such cases may be directed to obtain an order of bail under section 437 or section 439 within a reasonably short period after filing of the FIR as aforesaid.

Section 438 does not entitle the court to override the provision of section 437 and stay for a certain period of time the right of applicant to apply for and to obtain his release on Bail.

Q. What do you understand by ‘No Blanket order’ of Anticipatory Bail?

Ans. If a direction is issued under section 438 (i) to the effect that the applicant shall be released on Bail "whenever erected for whichever offence whatsoever" such a direction would amount to "blanket order" of anticipatory bail, an order with serves as a blanket to cover or protect any and every kind allegedly unlawful activity, in fact any eventuality likely or unlikely regarding which no concrete information can possibly be had.

Such a blanket order of 'anticipatory bail' is not contemplated by section 438 as that section requires that the applicant must have reasonable grounds to believe that he might be arrested for having committed a non-bailable offence.

Moreover, such a blanket order would cause serious interference with both the right and duty of the police in the matter of investigation. Such an order would become a lawless. Therefore, the supreme court in case of Gurbaksh Singh sibbia vs State of Punjab,1980 held that a "blanket order" of anticipatory bail should not be generally passed and that the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.

Q. For what period of time Anticipatory Bail will be effective?

Ans. There is nothing in section 438 to suggest that the order of anticipatory bail shall be effective up to a particular date or stage or till the filling of the challan. As soon as a person is enlarged on bail on the directions of anticipatory bail order, it would be deemed by implication as if the bail was granted under section 437 (i). Consequently, the bill shall be effective till the conclusion of trial, unless it is cancelled by the court taking action under section 437(5) or under 439(2) of the code on the grounds known to law and filing of challan in the court is by itself no ground to cancel the bail, held in the case of Ram Sewak vs State of MP, 1979

The Supreme court in the case, Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011, disapproved the practice of small benches making observations that anticipatory bail should be of limited duration and ordinarily on expiry of the duration the court granting anticipatory bail should leave it to the regular court to deal with the matter.

In Gurbaksh Singh sibbia versus State of Punjab 1980 the Supreme court held that the court may, if there are reasons for doing so, limit the operation of the order to a short period until after filing of an FIR in respect of the matter covered by the order. The normal rule should be not to limit the operation of the order in relation to a period of time.

Q. When Anticipatory bail can be cancelled?

Ans. There is no clear provision in section 438 or any other sections whether the order can be cancelled even before the regular bail is actually granted. In the case of State of Maharashtra vs. Vishwas shreepati Patil, 1978 it was held that when section 438 permits the making of an order and the order is made for granting anticipatory bail, it is implicit that the court making such an order is entitled upon appropriate consideration to cancel or recall the same.

---

JUDICIAL SERVICE EXAMINATION QUESTIONS

1. Jurisdictions to grant ‘ anticipatory bail ‘ vests with

a) Chief judicial Magistrate

b) The court of sessions only

c) The high Court only

d) Both (a) and (c)

[ Chhattisgarh A.P.P. 2008]

[ M.P. A.P.P .2008]

[ U.P.P.C. S ( j) 2003 ]

[ Haryana (j) 2015 ]

2. Anticipatory bail under section 438 of the Code of Criminal Procedure ,1973 means :

a) A direction to release a person on bail issued after a person is arrested

b) A direction to release a person on bail issued even before a person is arrested or is in apprehension of arrest

c) A direction to release a person on bail from judicial custody

d) A direction to release a person on bail when he is in police custody after being arrested

[ M.P (j) 2009]

3. On an application made by a person apprehending arrest on an accusation of having committed a non – bailable offence , the high Court or the court of sessions may , under Section 438 Cr.P.C, give the direction that :

a) He shall not be arrested till further order

b) He shall be released on bail without taking him into custody

c) In the event of such arrest he shall be released on bail

d) In the event of such arrest he shall be released on bail three days after the arrest

[ Chhattisgarh (j) 2003]

4. There is no jurisdictions to grant bail under section 438 of the code of Criminal Procedure in

a) The Court of Sessions

b) The High Court

c) Both (a) (b)

d) The court of Magistrate

[ Bihar A.P.P .2010]

5. In which case the Apex Court held that anticipatory bail should be granted only for a limited period

a) Sunita Devi v. State of Bihar and another

b) Naresh kumar Yadav v. Ravindra kumar

c) Salauddin v. State of Maharashtra

d) Siddharam Satlingappa Mhetre v. State of Maharashtra

[ M.P .H.J.S 2012 ]

6. Anticipatory bail under section 438 of the criminal procedure code ,1973 can be invoked in cases of

a) Billable offences

b) Nonbailable offences

c) Both (a) and (b)

d) None of the above

[ U.P.P.C. S (j) 2015]

[M.P(J) 2019 ( SHIFT -II)

7. Which one of the following is a case relating to anticipatory bail ?

a) D.K .Ganesh babu V . P.T .Manekaran

b) Tama V .State of West Bengal

c) Dinesh Dalmia V. C.B.I

d) Dimple gupta v. Rajiv gupta

[ U.P.A.P.O .2007]

---

1.d, 2.b, 3.c, 4.d, 5.c, 6.b, 7.a

---