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Anticipatory Bail: A Stasis of Personal Liberty & Social Justice

By Anshul Shrama ( (Student at Manipal University Jaipur )

Wise judge is the one who exercise judicial power inevitably to take care of evil consequences which are likely to its intemperate use. Even a minor misstep can engender outraging two vital interests I.e., shielding society from the hazards of committing crimes and potentiality of reiterating same felony. Therefore, the order granting or refusing anticipatory bail shall reflect a perfect balance between sanctity of individual liberty and the interest of our society. In outset years of law enactment, there is no existence of provision anticipatory bail. Reason incorporated in English bill of rights ,1689 states that “Excessive bail ought not to be required or ought excessive to be imposed”. As the demand of justice against the political concomitant to crime, influential people implication to rival increased, necessity also increased. In 1969, the Law Commission of India, in its 41st Report emphasized the sine qua none of introducing a provision in the Code of Criminal Procedure empowering the High Court and the Court of Sessions to grant “anticipatory bail”. It observed in para 39.9 of its report, that is set out as under:

“The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about 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 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 the 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.” Nomenclature “Anticipatory Bail” not explicitly mention in any Indian law. However, the very essence of law relating to Anticipatory bail flows from Section 438, chapter XXXIII of the Code of Criminal Procedure, 1973.

According to section 438, CrPC 1973 -:

  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 Session 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.
It is clear from very section that any person who has a reason to believe that there is a chance to get him arrested or apprehension of wrongful arrest on false charges, or due to animosity with any person, or he/she fears that a false case is likely to be instituted against him, he has the right to move the court of Session or the High Court under mentioned section of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Henceforth, anticipatory bail is not regular bail rather it has heterogenous characteristics compared to any provision of bail. In Gurbaksh Singh Sibbia v. State of Punjab, the apex held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.
Furthermore, the words “may if it thinks fit” used in abovementioned section imply that courts have wide discretion to consider the bail, if they consider it fit in specific circumstances & facts of the case or refuse it. Conditions mentioned in the same section are exhaustive in nature. In Suresh Vasudeva vs State (1978), Hon’ble court stated that condition mentioned in section 438 are only illustrative and the court may impose other condition, if think fit with view to strike a balance between individual’s right to personal freedom and the investigational rights of the police
In case of Sushila Aggarwal vs State(2020), Some parameter has been laid down by the apex court while granting anticipatory bail. These are enumerated as follows-:
Hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:
  1. When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is a reasonable basis for apprehending arrest. 
  2. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
  3. Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2) The need to impose other restrictive conditions would have to be judged on a case-by-case basis and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
  4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on the facts of the case, and subject to the discretion of the court.
  5. Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
  6. An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
  7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.