Anticipatory Bail | Section 438 of CrPc – Explained!

Legal provisions regarding Anticipatory bail under section 438 of the Code of Criminal Procedure, 1973.

Section 438 of the Code of Criminal Procedure empowers the High Court and the Court of session to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested. Section 438 of the Code of Criminal Procedure provides that:

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(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 Sessions 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:

(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 in respect of 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,

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.

(1-A) 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.

(1-B) 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.

(2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such direction 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 Section 437(3), 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, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should be issued 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).

The object of Section 438 of the Code is that a person anticipating arrest under non-bailable offence is not obliged to go to jail till he is able to move the Court for being released on bail, to relieve a person from unnecessary apprehension or disgrace.

Section 438 of the Code contemplates an application for anticipatory bail has to be filed either to High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail. This provision applies to all non-bailable offences and is not confined to offences triable exclusively by the Court of Session.

Section 438(2)(i) of the Cr. P.C. is very clear that while granting anticipatory bail, the Court can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. The purpose of such a provision is that anticipatory bail cannot be permitted to be abused.

It is, therefore, implied that whenever the court imposes such a condition in its order, and the accused called for interrogation or for certain investigation does not appear before the investigating officer then it will be open for the State to move the High Court for cancellation of bail.

Whereas ordinary bail is granted after arrest, anticipatory bail is granted in anticipation of arrest and is effective at the very moment of arrest.

The anticipatory bail can be granted even after the criminal Court has taken cognizance, and summons or warrant has been issued by the Court. The anticipatory bail under Section 438 may be granted to government servants, minors, women, old and infirm persons, handicapped persons, persons having permanent disability, persons who are involved in pretty cases, persons who are likely to be harassed in police custody. For other categories of cases, the general law of bail is already provided in Section 439 of the Code.

Granting anticipatory bail is an exceptional power and should be exercised only in exceptional cases and not in general cases. Anticipatory bail has to be granted in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him, or 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 that such power is to be exercised. If a case for anticipatory bail is made out, it should not be refused merely because the accused is required in police custody for interrogation.

The operation of the order of anticipatory bail should not be limited in point of time and if it is once granted must be held to be operative till the conclusion of the trial, unless it is cancelled under Section 439 of the Code.

However, the Supreme Court has held that it is necessary that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on the appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

The application for anticipatory bail must show that the applicant has reasons to believe that he may be arrested for a non-bailable offence and grounds for such belief must be capable of being examined by the Court objectively and Section 438 of the Code cannot be invoked on the basis of vague and general allegations.

The filing of a first information report is not a condition precedent to the exercise of the power under Section 438 of the Code and anticipatory bail can be granted so long as the applicant has not been arrested.

Status in life, affluence or otherwise, are hardly relevant consideration while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court may be cautious and circumspect in exercising such power.

Section 438 of the Code may be attracted, when an influential person is the complainant against a weak person or in the case of political rivalry between two persons if a case is instituted against a political rival. However, there must be some indication that the allegations are false.

The power of granting bail under Section 438, Cr. P.C. is extraordinary and is exercised only in exceptional cases. Where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. This power being of important nature is exercisable by higher judicial forums.

It is exercised in case of an anticipated accusation of non-bailable offence. The object of the Section 438, Cr.P.C. is that the moment a person is arrested, if he has already obtained an order from the High Court or the Court of Session, he shall be released immediately on bail without being sent to jail.

The accused was charged of criminal conspiracy to commit murder. He had common grudge against deceased. The trial of the case had almost come to an end and only few witnesses remained to be examined. Some of witnesses to conspiracy had turned hostile.

The accused is politically influential and financially strong. He had capacity to influence witnesses. Releasing accused when trial is at such precarious stage would not be proper. Moreover, accused are residents of border districts and possibility of their fleeing from judicial process cannot be ruled out. Accused were held, not entitled to be released on bail.

The use of expression ‘reason to believe’ in Section 438 of the Code shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not a ‘belief’.

‘Reason to believe’ obligates the existence of objective material for the subjective satisfaction of the person apprehending in arrest. The objective material must be capable of being examined by the Court.

Only then the Court, if satisfied, will grant relief under Section 438 of the Code. To show the background of the case and the materials for the genuine apprehension, the Court may insist for the affidavit to be filed by the petitioner, if not at least through supporting affidavit by some person related to him, in order to enable the Court to decide whether to grant the relief sought for or not.

Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail.

The applicant must show that he has ‘reason to believe’ that he may be arrested in a non-bailable offence. Use of the expression ‘reason to believe’ that he may be arrested in a non-bailable offence use of the expression ‘reason to believe’ shows that the applicant may be 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 vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the application is based that he may be arrested in non-bailable offence must be capable of being examined.

If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused.

As the power under Section 438 of the Code being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court.

Though Section 438 of the Code gives concurrent powers to High Court and Court of Session, it is normally to be presumed that the Court of Session would be first approached for the grant of anticipatory bail unless an adequate case for not approaching the said Court has been made out.

It is not always necessary that the Session Judge should be approached first. If the petition for anticipatory bail has been rejected by the Sessions Court, the petitioner cannot approach the High Court asking for anticipatory bail on the same ground.

However, the Division Bench of the Karnataka High Court held that a petition under Section 438 of the Code is maintainable before the High Court even if a similar application has been made and rejected by the Court of Session as, in the hierarchy, Court of Session is subordinate to the High Court, a party who makes an application under Section 438 of the Code before the Sessions Court, could approach the High Court if his application has been rejected by the Court of Session, but not vice versa.

Section 438 of the Code does not make any specific provision for issuing notice to the public prosecutor and hearing the public prosecutor by the Court before granting anticipatory bail. However, the Supreme Court decided that notice should be issued to the public prosecutor or the Government Advocate before granting final anticipatory bail.

It has been held that in order to avoid the possibility of the person hampering investigation, the High Court or the Court of Sessions may impose such conditions as it thinks fit while admitting him to anticipatory bail.

Anticipatory bail granted by the High Court can only be cancelled under Section 439(2) of the Code. It has been held that when an anticipatory b.ail is granted on giving full hearing to the public prosecutor and repeated attempts to have it cancelled have failed, it cannot be cancelled unless fresh material are placed and the conditions for cancellation of bail as provided under Section 439(2) are fulfilled. Bail once granted should not be cancelled in a mechanical manner.