Anticipatory Bail in India

Section 438 of Cr.P.C. deals with anticipatory bail. The anticipatory bail is nothing but a bail in the event of arrest, when any person has an apprehension or reason to believe that he may be arrested of an accusation of having committed a nonbailable offence then he may apply to High Court or Court of Sessions for direction that in the event of arrest he shall be released on bail. Therefore, the said powers are exclusively vested with the Court of Sessions and High Courts.

For considering the application for anticipatory bail the prerequisite condition is that the offence must be non- bailable. There must be a sufficient reason to believe that the applicant may be arrested in said accusation. The Sessions Court or the Hon’ble High Court considering

the nature and gravity of accusation, the antecedent of applicant, the possibility to flee from justice and whether the accusation has been made with object of injury or humiliating the applicant by having him arrested may either reject the application or issue an interim order for the grant of anticipatory bail.

This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a crime. When the person has an apprehension of being arrested, the person can apply for anticipatory bail. Sometimes, an application for anticipatory bail may go against the person, as it might alert an investigation agency regarding the involvement of that person in a crime.

Important factors to be considered while granting anticipatory bail in India

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive list of considerations while deciding anticipatory bail. They are as follows:-

• Gravity of crime and role of accused must be understood before the arrest.
• Previous record of accused, any imprisonment on conviction in respect of non bailable offence, should be checked.
• Possibility that applicant will flee from justice.
• Chances of repetition of similar or other offences.
• Intention behind accusation is whether to injure or humiliate the applicant by arresting him or her.
• Consider the exact role of the accused.
• Reasonable apprehension of tampering with evidence, witnesses and threatening the complainant.

Standard conditions while granting anticipatory bail

• Accused should present himself / herself for interrogation by the investigation office as and when asked to appear.
• Accused should not directly or indirectly try to induce, threaten, or promise to any person related to the case who knows the facts of the case, so that he can be dissuaded from disclosing the fact to the court or investigation officer.
• Accused should not leave the country with prior permission of the court.
• Any other condition  which the honourable court deems fit.

The objective behind enacting Section 438 is to safeguard the liberty of a  person. The need for anticipatory bail arises mainly when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Anticipatory bail is concerned with the liberty of a person and presumes their innocence. It was held in the case of Gurbaksh Singh Sibbia vs. the State of Punjab by a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud that Section 438 (1) is to be interpreted in the light of Article 21 of the Constitution.  While Courts have time and again emphasised the need to uphold the liberty of individuals and protect them from arbitrary arrests, one needs to remember that anticipatory bails are not a matter of right like other types of bail.

Presence of accused: If the public prosecutor applied to the court that direction

be given to the applicant to remain present in the court at the time of final hearing of

the application then if court considers such presence necessary in the interest of

justice and give such direction to the applicant. But such direction be issued when the

interim anticipatory bail is granted to the applicant otherwise not. (2010 ALL M R

(Cri) 3073 Shivraj Krishnappa Gandge ..vs.. State of Maharashtra ) .

Section 438(2) of Cr.P.C. provides that, the High Court or the Sessions Court may also impose some conditions while granting the application.

The conditions may be as follows :

1. a) That the persons shall make himself available for the interrogation by police officer

as and when required;

1. b) That the person shall not directly or indirectly make any inducement, threats or

promise to any witness;

1. c) That a person shall not leave India without previous permission of the Court.

Practice of appearing on every 14 days

Accused who has been granted bail need not to appear before the court till the

charge sheet is filed and process is issued [Free Legal Aid Committee v. State of

Bihar, 1982 Cr.L.J. 1943 : 1982 AIR (SC) 1463][4]

Bar to grant of anticipatory bail : Section 18 of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act bars anticipatory bail for the offences

committed under the said Act. However, if the prima facie case is not made out under

the provision of the Atrocities Act, then there is no bar to grant of anticipatory bail.

[Vilas Pandurang Pawar vs State of Maharashtra 2012 CRI .L.J. 4520 (SC)].

Who is eligible to obtain anticipatory bail?

When any person has a reason to believe that there is a chance to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 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. Accused who has been declared as an absconder/proclaimed offender in terms of Section 82 of the Criminal Procedure Code and not cooperated with the investigation should not be given an anticipatory bail. Hon’ble APEX Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013) held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”.

Guidelines regarding the grant of anticipatory bail have been laid down in the landmark case of Gurbaksh Singh Sibbia vs. State of Punjab.

Conditions for obtaining the anticipatory bail:

The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including:

• a condition that the person shall make himself available for interrogation by the police officer as and when required;
• 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;
• a condition that the person shall not leave India without the previous permission of the court.

Hon’ble Supreme Court while dealing the case of Siddharam Satlingappa Mhetre9 held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.

An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody on an application moved by the complainant or the prosecution.

In Gurbaksh Singh Sibbia v. State of Punjab10 , the Hon’ble Supreme Court 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”.

No Regular Bail shall be granted When Interim Anticipatory Bail Is Granted By Higher Courts And Matter Is Pending:

Recently, Hon’ble Supreme Court, in Rukmani mahato vs. state of jharkhand (S.L.P Criminal no.2411 of 2016 dt.03-08-2017) has directed Trial Courts to not grant regular bail to an accused, if he/she has already obtained an interim anticipatory bail by a superior Court and the matter is still pending before the higher Court. The Court held that:

“Once a regular bail is granted by a subordinate Court on the strength of  the interim/pre-arrest bail granted by the superior Court, even if the superior  Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold  the field, rendering the ultimate rejection of the pre-arrest bail by the superior  Court meaningless,” a Bench comprising Justice Ranjan Gogoi and Justice Navin Sinha explained

Digendra Sarkar And Ors. vs Unknown on 1 September, 1982 Under Section 438 of the CrPC, the application for anticipatory bail applied even before the First Information Report is registered. So, First Information Report cannot be a condition precedent to applying for anticipatory bail.

Suresh Vasudeva vs. State – Section 438(1) applies only to non-bailable offences.

Sushila Agarwal vs. State – Supreme Court held that anticipatory bail should not be for a fixed period, but it is open to the court to limit the tenure of anticipatory bail if any special condition necessitates the same.

Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :

• There are no provisions in the  CrPC regarding time boundness of granting pre – arrest anticipatory bail.
• The concerned court has the discretion to impose conditions for grant of anticipatory bail including a limited period of protection etc., subject to considering any special circumstances required.

Clause 4 was added to Section 438, through the Criminal Amendment Bill, 2018. The legislature inserted four clauses under Section 438. According to the amendment, anticipatory bail cannot be granted to a person accused of the offence of committing rape on a woman aged under 16years, under 12 years, gang rape on a woman aged under 16 years of age and gang rape of a woman under 12 years of age, punishable under Section 376(3), 376 AB, 376 DA and 376 DB respectively under the Indian Penal Code (Punishment of rape) 1860.

Rape is a heinous crime and there should be strict provisions under law to punish the convict. However,  there is a difference between an accused and being proclaimed a convict. There are high chances of an accused being acquitted after a trial and hence denying the right of bail entirely goes against the spirit of justice. Rape is a serious crime but nowadays people go to any level to defame a person to take revenge on them, therefore the instances of filing false cases of rape are also increasing. Hence, this amendment unjustly restricts the right to get anticipatory bail.

Case Laws where Anticipatory Bail was denied:

In the recent case of Nathu Singh & Ompal Singh Vs. State of Uttar Pradesh & others (2021), the Supreme Court while dismissing an anticipatory bail plea remarked that Courts have been enshrined with discretionary powers for deciding anticipatory bail pleas.

“However, such discretionary power cannot be exercised in an untrammelled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant, and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.

In Sushila Aggarwal and others Vs. State (NCT of Delhi) & another the SC held that“The   correctness   of   an   order   granting   bail,   can   be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial   circumstances.”

Case Laws where Anticipatory bail was granted:

In the case of M.C. Abraham and another VS. State of Maharashtra the SC held that rejection of anticipatory bail does not mean that the petitioner must compulsorily be arrested.

“A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offense, the background of the accused, the facts disclosed in the course of the investigation and other relevant considerations.”  In this case, the HC has ordered to arrest the accused when his anticipatory bail was rejected on an erroneous assumption that arrest has to be made if anticipatory bail was rejected.

In the case of Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, the SC bench held that anticipatory bail for an offense committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, can be granted with only one condition that the court hearing the matter has heard the complainant’s side himself.

The Supreme Court in the year held in the Case of BHADRESH BIPINBHAI SHETH Vs. STATE OF GUJRAT & ORS. held that “the benefit of anticipatory bail cannot be denied when a charge even of serious offence like under section 376 IPC is added after a long period of time and inaction of the prosecutrix is also a contributory factor to such delay.”

In the case of M.P. & Anr. Vs. Ram Kishan Balothia and Anr, the SC held that getting anticipatory bail cannot be considered as a fundamental right mentioned under article 21 of the Indian Constitution.

In Savitri Agarwal v. State of Maharashtra & Anr, the Apex Court remarked that the petitioner seeking anticipatory bail should have a reason to believe that he is likely to be arrested. And the belief should be backed with specific events and facts that can help the Court judge the reasonableness of his belief.