Section 438 of the Code of Criminal procedure contains a new provision enabling superior Courts to direct the release of a person on bail prior to his arrest, which is commonly known as anticipatory bail.
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There was no express provision for anticipatory bail in the Old Code. The Law Commission, while recommending the introduction of this provision in the present Code, observed as follows:
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“Though there is a conflict of judicial opinion on the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the (Old) Code. 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. In recent times, with this accentuation of political rivalry, 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.”
S. 438-A (as amended in 2005) lays down that if 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 to the Sessions Court for a direction that, in the event of such arrest, he is to be released on bail. The Court may, after considering the factors listed below, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
The factors to be taken into consideration before granting or rejecting an application for such bail are:
(a) The nature and gravity of the accusation;
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(b) The antecedents of the applicant, including whether he has, in the past, been imprisoned for having committed any cognizable offence;
(c) The possibility of the applicant fleeing from justice; and
(d) Whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
If the Court has not passed any interim order or has rejected the application of anticipatory bail, it is open to an officer in charge of a police station to arrest the applicant without a warrant, on the basis of the accusation apprehended in such an application.
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If, on the other hand, the Court grants an interim order of anticipatory bail, it must cause a notice (of not less than seven days) to be served on the Public Prosecutor and the Superintendent of Police, along with a copy of the Court’s order, with a view to give the Police Prosecutor a reasonable opportunity of being heard when the application is finally heard by the Court.
It is also provided that the presence of the applicant seeking anticipatory bail is obligatory at the time of final hearing of the application and passing of the final order, if on an application made to the Court by the Public Prosecutor, the Court considers such presence to be necessary in the interest of justice.
(i) A condition that the person should 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 S. 437(3), as if the bail was granted under that section.
If anticipatory bail is granted to a person, and he is thereafter arrested without a warrant by an Officer-in-charge of a Police Station on such accusation, and is prepared to give bail, he must be released on bail. If, in such a case, the Magistrate taking cognizance of the offence decides that a warrant should be issued in the first instance against such a person, he must issue a bailable warrant against that person.
In a case decided by the Supreme Court (Gurbaksh Singh v. State of Punjab, (1980) 2 S.C.C. 565), anticipatory bail was defined as follows:
“An anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued, is thereafter arrested on the accusation in respect of which the direction is issued; he shall be released on bail …….. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for the offence or offences in respect of which the order is issued.”
The scope of S. 438 of the Code was considered in Gurbaksh Singh Sibbia’s case (above), where the Supreme Court observed as under:
“In regard to anticipatory bail, if the proposed accusation appears to stem, not from motives of furthering the ends of justice, but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail, he will flee from justice; such an order would not be made.”
In Pyarelal v. State of M.P., (1980 Cr. L.J. 183), an application for anticipatory bail was made by certain persons who were office-bearers and active workers amongst labourers. It was alleged that they had incited the workers and by force prevented the Police from maintaining law and order, and in the incidents that followed, one Police Officer was killed.
It was further alleged that several other culprits were absconding as there was a strong likelihood of tampering of evidence. In the circumstances it was held that there was no case for grant of anticipatory bail.
In Balchand Jain’s case (A.I.R. 1977 S.C. 366), the Supreme Court laid down the following three propositions with respect to grant of anticipatory bail:
(i) The power under S. 438 is of an extraordinary character, and must therefore be exercised sparingly and in exceptional cases only.
(ii) This power is not unguided or uncanalised, but the limitations imposed by S. 437 (discussed earlier) are to be read into S. 438 also.
(iii) In addition to the limitations imposed by S. 437, the Petitioner must further make out a special case for the exercise of the Court’s power to grant anticipatory bail.
It has also been held that anticipatory bail is to be granted on the same conditions on which bail is granted under S. 437 to a person accused of a non-bailable offence. However, in such cases, the Court must also be satisfied that if anticipatory bail is refused, an irreparable wrong might result, which it is desirable to avoid. (Bhagirath, — 1975 Cr. L.J. 1681)
When granting anticipatory bail, the Court must strike a balance, so that, on the one hand, a person is protected from unnecessary humiliation, and on the other, the faith of the public and of the society in the administration of justice is not shaken.
An interesting question is whether a person can apply to the Court within whose jurisdiction he resides for an order of anticipatory bail, in respect of an arrest which he apprehends in a case in another State. Conflicting views have been expressed on this question, the Calcutta High Court and the Karnataka High Court holding that such bail can be granted, and the Punjab and the Haryana High Court observing that such bail cannot be granted.
Whether blanket anticipatory bail can be granted, In Gurbaksh Singh’s case (A.I.R. 1978 P. & H. 1), it has been held that the exercise of the power conferred by S. 438 is with regard to a specific accusation, and cannot be extended, in a blanket fashion, to cover all offences with which the person may be charged. In other words, no question of anticipatory bail can arise with regard to an accusation not yet levelled, or in respect Of an offence not yet committed.
If a contrary interpretation is given, it would conflict with, and render nugatory, several other important provisions of the Code, such as Ss. 41 to 44, S. 151, etc. Nor can such a power be derived from the inherent powers of a High Court, as the Code is exhaustive as regards the matters for which it specifically provides. Therefore, any theory of inherent power for the grant of a blanket anticipatory bail cannot be sustained.
Cases:
In one case, no clear allegations were made in the First Information Report, and no evidence was collected. It was, therefore held, that there was no jurisdiction for the arrest of the accused, and he was released on anticipatory bail, with the option given to the prosecution to apply for cancellation of the bail as and when evidence was collected. (Puri.—1974 C.L.R. 502)
In another instance, no case was registered against the accused, and the case in which he was arrested, he was allowed bail by the Trial Court. But the accused apprehended that he would be arrested for some non-bailable offence. The Court held that anticipatory bail could be given to him. (Hari Ram, — 1975 C.L.R. 538)