Defined: Anticipatory Bail – LexForti Authorized Information & Journal
This Article explains the concept of Anticipatory Bail, based on doctrinal research. It looks into Anticipatory bail order’s time/tenure for the study purpose.
Author: Ashwin Pandey, associated with The West Bengal National University of Juridical Sciences
Chapter XXXIII of the Code of Criminal Procedure, 1973 contains elaborate provisions relating to grant of bail. Bail is granted to one who is arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control would still be exercised through the conditions of the bond secured from him. “Bail” literally means surety.
The reason for the enactment of Section 438 of the Cr.P.C. was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 of the Cr.P.C. is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 of the Cr.P.C., especially when not imposed by the legislature.
To state that the interpretation of Section 438 of the Cr.P.C. does not encapsulate Article 21 of the Constitution of India, 1950 is erroneous. That there can be no doubt that the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he/ she not be arrested. Section 438 of the Cr.P.C. was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognized as a widespread malaise on the part of the police.
What is a Bail?
Bail, a term derived from the French word Bailier, is defined in the Black’s Law Dictionary as the procurement of the release of a person from legal custody, through the undertaking that the person shall appear before, and submit themselves to, the jurisdiction of the appropriate courts when they are summoned. In order for the release to take place, security has to be provided, and the monetary value of this security is known as the bail bond.
Bail as a concept has existed in India for many years now. The legal system that was present during the rule of the Mughals followed a method of bail that was not too different from that of England. Upon providing a surety, the accused would be released from custody, pending trial.
The British introduced their version of bail in the year 1861 through the original Code of Criminal Procedures, the Act would go on to be re-enacted in the years 1872 as well as 1878. Until this point, the bail system that was followed in India was that of Zamanat and Muchalka. Muchalka refers to a form of penal bond that was obligatory in nature and was taken from the inferiors by an act of compulsion. Zamanat was a form of judicial release in which the zamin or surety of the accused would become answerable on the behalf of the accused and would submit a written deed before the court stating the same.
Today, upon reading the Code of Criminal Procedures we find that there exists no mention of the term bail-in any place, however, we do find the terms bailable and non-bailable offences have been defined in the Act. A bailable offence is simply any offence that is listed under Schedule I, and any other offence comes under the purview of a non-bailable offence. In the case of a bailable offence, bail is a right of the person unlike in a non-bailable offence where it is a matter of discretion, this was stated in the 41st report by the Law Commission.
Often times when we talk about bail, we hear the term anticipatory bail. But what does this really mean? Through the course of this article, we seek to take a closer look at the concept of anticipatory bail in India.
Anticipatory bail refers to an application made by the accused upon being arrested by the police to seek permission from a court that they are released. Anticipatory bail has to be applied for against a specific charge, and the petition ought to be supported with the aid of an affidavit.
The Code of Criminal Procedures makes no express mention of anticipatory bail, but the concept can be seen and understood with the help of Section 438. It states that when a person believes that they might face arrest on accusations of having committed a non-bailable offence, they can apply to the High Court or the Court of Sessions under this section for anticipatory bail, and if the court believes it fit, may grant bail to the person. It is important to remember that anticipatory bail is not a matter of right, it is purely down to the discretion of the court.
Section 438 of the CrPC also lays down certain conditions on the granting of anticipatory bail. It states that the High Court or the Court of Sessions may impose conditions such as the person making themselves available for interrogation when needed, the person shall not attempt to threaten or induce anyone from placing evidence before the court and the person shall not leave the country without permission.
It is also important to note that even though Section 438 does give the power to grant anticipatory bail to both the High Court as well as the Court of Sessions unless adequate reasons can be given, it is the Court of Sessions who are to be normally approached first. The Bombay High Court also clarified in Jagannath v. State of Maharashtra that if a Court of Sessions were to deny anticipatory bail, it would not stop the petitioner from filing a similar application on the same facts before the High Court. However, it was laid down in Devidas Raghu Naik v. The State that if an application is made before a High Court and they reject it, then the petitioner cannot approach a court of sessions with the same.
It is important to remember that just because the application for anticipatory bail is rejected, it is not necessary that the police arrest the person. This was stated in the case M.C Abraham and Anr v. State of Maharashtra.
Hence the broad difference between ordinary bail, as granted under Section 437 of the CrPC, and anticipatory bail is that while ordinary bail is granted after the person has been arrested, anticipatory bail is granted in the anticipation of an arrest and thus becomes active at an earlier point, this difference was clarified in Natturasu v. State.
How has anticipatory bail developed over the years?
Anticipatory bail has not always been a part of the CrPC, initially, the courts believed that a person could not be granted bail unless they had been taken into custody, this position was laid down in the Varkey Paily Madthikudiyil case.
However, post this case, the position towards anticipatory bail began to shift with it finding mention in multiple reports by the Law Commission.
It became a part of the new CrPC in the year 1973 on the recommendation of the 41st Law Commission Report. They reasoned that anticipatory bail was necessary since there are situations where people of influence look to implicate their competitors in false cases, further if there are grounds to believe that the accused will not abscond or misuse the liberty afforded to them, it makes no sense to keep them in custody in such a situation.
The 48th report stated that anticipatory bail only ought to be used in exceptional circumstances in order to ensure that the provision is not abused. It further stated that the final order with regards to the anticipatory bail should only be made after providing notice to the public prosecutor, with the initial order only being an interim one.
The 154th report also talked about creating a balance with regards to bail in order to ensure that society is kept safe from all those members who pose a threat to the safety of the general public, and at the same time ensuring that due respect be shown to the presumption of innocence of an accused until proven otherwise.
The 203rd report once again reiterated that the power to grant anticipatory bail lies with the High Court and Court of Sessions, and if they do not reject the application then notice has to be given to the public prosecutor. It further stated that the person who seeks anticipatory bail must compulsorily be present before the court.
It has also been said by the Supreme Court in Gurbaksh Singh Sibbia V. State of Punjab that Section 438 ought to be read alongside Article 21 of the Indian Constitution.
Who are eligible to be able to apply for anticipatory bail?
Any person who is under the apprehension that they are about to be arrested through a warrant issued by a Magistrate under Section 209, can apply for anticipatory bail under Section 438 of the CrPC. If the court is satisfied with the application then it shall grant bail to the person.
Initially, the position was that the power of anticipatory bail needs to be used with due care and caution and must only be granted by the court in rare cases. However, this position was overruled in Siddharam Satlingappa Mhetre v. State of Maharashtra, where the Supreme Court held that Section 438 of the CrPC was not “extraordinary”, meaning that it only ought to be imposed in rare cases. If it could be shown that the accused was fully cooperating in the investigation and there is no likelihood of them absconding, then they ought to be released on anticipatory bail, which should continue to the end of the trial.
It is also to be noted that if there is a situation where the accused is apprehending arrest through a non-bailable warrant, he can still apply for anticipatory bail, this position was clarified in the case of Bonneswar Dutta.
If a situation arises where there are three accused of a crime, and two of them have already been granted bail, then assuming that the charges against all of them were similar, the third accused also ought to be granted bail upon making a petition. This was laid down in the Sadya V. State of Rajasthan.
Further, if a situation arises where another co-accused in a crime has been granted bail by the court in another trial, but one of them had been absconding when this had happened, they would not find themselves eligible for anticipatory bail. This was laid down in the case Munna Munni Singh V. State of Rajasthan where the court noted that “acquittal of co-accused persons in a separate trial does not entitle an absconding accused to be released on anticipatory bail.”
In State of Kerala V. K.R Suraj, it was stated that just because one of the accused has been granted regular bail, this does not mean that the other accused can be refused anticipatory bail on that ground alone. Further, Ganesh Raj V. State of Rajasthan stated that even if the original application for anticipatory bail is refused on grounds such as merits or it was dismissed due to default, it would not stop the accused from filing a fresh appeal for anticipatory bail.
What are the things taken into consideration by the Court before granting anticipatory bail?
Before bail is granted, the court looks at a number of factors. These factors include the following:
- Nature of the accusation as well as role of the accused.
- Possibility of accused absconding
- Possibility that the accused repeats the same act again
- Accusations have been made with malicious intentions
- Public impact of granting anticipatory bail to the accused.
- Possibility of accused tampering with evidence.
- Has the accused ever been imprisoned before?
The court keeps these factors in mind to ensure that balance is maintained between having a free and fair investigation as well as trial, and the accused not having to undergo undue harassment or humiliation due to false charges being leveled against them.
What happens once I have been granted anticipatory bail?
The judgment in Ramsewak V. State of MP stated that once bail has been granted under Section 438 of the CrPC, it remains operative for the specific offences for which it was approved until the end of the trial, unless it is cancelled under Section 439 of the CrPC on charges such as tampering of evidence or there arising new circumstances after the bail was granted.
It was held by the Supreme Court in Salauddin Abdul Samad Shaikh v. State of Maharashtra that the duration of the anticipatory bail ought to be of a limited period of time, they justify this by stating that the bail is granted at a stage when the investigation has not yet been completed and hence the court does not have all the information regarding the evidence against the offender. They further state that at the end of this expiry period, the court which granted anticipatory bail ought to leave the matter to the normal court to decide on the basis of the evidence that is produced before them.
However, this position changed in 2020 when a five-judge bench of the Supreme Court, led by Justice Arun Mishra, in Sushila Agarwal v. State of Delhi stated that there cannot be any such time limit on anticipatory bail, the life of the anticipatory bail may continue till the end of the trial. They do state that if there exist any “peculiar features” then the court may limit the anticipatory bail as it deems fit.
Critical Analysis on Sushila Aggarwal & Ors vs State (NCT of Delhi) & Anr,
Section 438 of the Code of Criminal Procedure, 1973 enables two classes of courts: Court of Session and High Court, to issue directions not to arrest a person, who apprehends arrest. In the matter of Sushila Aggarwal & Ors(Supra), it was held as follows:
That the expression “anticipatory bail” has not been defined in the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.). Anticipatory bail means bail in anticipation of arrest.
The expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the court in anticipation of arrest.
An application for an anticipatory bail in anticipation of arrest can be moved by the accused at a stage before the FIR is filed or at a stage when FIR is registered but the charge-sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded.
Power to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for anticipatory bail and while granting the anticipatory bail it is ultimately for the concerned court to impose conditions including the limited period of anticipatory bail depends upon the stage at which the application for anticipatory bail is moved.
A person in whose favour a pre-arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre-arrest bail or anticipatory bail, as and when he is arrested, he has to be released on bail. Otherwise, there is no distinction/ difference between the pre-arrest bail order under Section 438 of the Cr.P.C. and the bail order under Sections 437 and 439 of the Cr.P.C.
Difference between pre-arrest bail order and regular bail order:
The only difference between the pre-arrest bail order under Section 438 of the Cr.P.C. and the bail order under Sections 437 and 439 of the Cr.P.C. is the stages at which the bail order is passed.
The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest, and the order of bail under Sections 437 and 439 is after a person is arrested.
A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre-arrest bail granted under Section 438 of the Cr.P.C. has to be time-bound. The position is the same as in Section 437 of the Cr.P.C. and Section 439 of the Cr.P.C.
Can an order of bail be passed under Section 438 of the Cr.P.C. without notice to the Public Prosecutor?
An order of bail can be passed under Section 438 of the Cr.P.C. without notice to the Public Prosecutor. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties.
The ad-interim order too must conform to the requirements of Section 438 of the Cr.P.C. and suitable conditions should be imposed on the applicant even at that stage.
Should the operation of an order passed under Section 438 (1) of the Cr.P.C. be limited in point of time?
That it is not necessary that an order passed under Section 438 (1) of the Cr.P.C. be limited in point of time.
The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of the FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or Section 439 of the Cr.P.C. within a reasonably short period after the filing of the FIR as aforesaid. But this is not to be followed as an invariable rule. The normal rule is not to limit the operation of the order (anticipatory bail) in relation to a period of time.
That conditions can be imposed by the concerned court (Court of Session/ High Court) while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application is moved, namely, whether the same is:
- At the stage, before the FIR is filed,
- or at the stage when the FIR is filed and the investigation is in progress, or,
- At the stage when the investigation is complete and the charge-sheet is filed.
The normal rule should be not to limit the order of grant of anticipatory bail in relation to a period of time.
Whether the anticipatory bail should be granted to a person under Section 438 of the Cr.P.C. be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?
Interestingly, Section 438 of the Cr.P.C. does not expressly use the term “anticipatory bail”; its language instead empowers the concerned court (Court of Session or High Court) to issue directions for grant of bail. The term “anticipatory bail” finds no place in the Cr.P.C. itself but was used by the Law Commission of India in its 41st Report; the term was used to convey that it was an application for bail in anticipation of arrest, that is, before the arrest itself is made.
That so far as Section 438 of the Cr.P.C. is concerned, there is no invariable or inflexible rule that the applicant for anticipatory bail has to make out a special case, or that the relief is to be of limited duration, in a point of time, or is unavailable for the certain particular class of offences.
Conditions on which anticipatory bail can be granted:
The controlling expressions under Section 438 (2) of the Cr.P.C. spell out three distinct conditions, which the court granted anticipatory bail can include as directions. These are:
- The applicant to make himself available for interrogation by a police officer, as and when required;
- Applicant to refrain himself from directly/ indirectly making 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;
- The applicant to not to leave India without prior permission of the court.
Further, as per Clause (iv) of Sub-section (2) of Section 438 of the Cr.P.C., conditions as may be deemed essential as mentioned in Section 437 (3) of the Cr.P.C., may also be imposed by the court granting anticipatory bail.
Mandate contained in Section 438 (4) of the Cr.P.C.:
The amendment, namely, the Code of Criminal Procedure (Amendment) Act, 2018, introduced Sub-section (4) to Section 438 of the Cr.P.C., and the same reads as under:
“… Nothing in this section shall apply to any case involving the arrest of any person on an accusation of having committed an offence under subsection (3) of section 376 or section 376-AB or Section 376-DA or section 376-DB of the Indian Penal Code.”
It is important to note that the only bar/ restriction imposed by Parliament upon the exercise of the power to grant anticipatory bail is by way of a positive restriction, that is, in the case where accused are alleged to have committed offences punishable under Section 376 (3) or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code, 1860. In other words, Parliament has now denied jurisdiction to the courts (Court of Session and High Court) from granting anticipatory bail to those accused of such offences.
There are no offences per se which stand excluded from the purview of Section 438 of the Cr.P.C., except for those offences which are mentioned in Section 438 (4) of the Cr.P.C. However, if there are indications in any special law or statute which exclude relief under Section 438 (1) of the Cr.P.C. then they would have to be duly considered.
Deemed Custody and Section 27 of the Evidence Act, 1872:
When a person has been granted anticipatory bail and is thus not in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police.
Section 46 of the Cr.P.C. does not contemplate any formality before a person can be said to be taken in custody. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer within the meaning of Section 27 of the Evidence Act, 1872.
If an anticipatory bail order is to subsist till the end of trial then it cannot be said that such duration/ time-span of the order has an adverse effect on the investigative powers of the police because the police/ investigation agency would not be in a position to cause recovery of articles/ discovery of a fact in terms of Section 27 of the Evidence Act, 1872. That the concept of “deemed custody” can be applied to such situations, that is, where discovery is to be caused in terms of Section 27 of the Evidence Act, 1872 while the accused has already been enlarged on anticipatory bail which is to operate till the end of the trial.
Whether there is anything in Section 438 of the Cr.P.C. or any other law for time being in force which per se requires that upon the filing of the charge-sheet or summoning of the accused by the court or addition of an offence in the charge-sheet of which an applicant on bail is accused of freshly, his liberty ought to be forfeited and that he should be asked to surrender and apply for regular bail?
That the position of law is that:
- An accused, who is granted anticipatory bail would continue to be at liberty when the charge-sheet is filed.
- If at any time during the investigation were any occasion to arise calling for the intervention of the court for infraction of any of the conditions imposed under Section 437 (3) of the Cr.P.C. read with Section 438 (2) of the Cr.P.C. or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439 (2) of the Cr.P.C., which states as under:
“… A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
- If, for example, FIR has been lodged against X for the commission of offence of causing grievous hurt and during the course of investigation, X gets arrested but later on applying for regular bail, he gets enlarged on bail; but soon thereafter, the victim dies because of the injuries and therefore a cognizable and non-bailable offence gets added against X, then in this situation the solitary option that is available with X is to surrender and apply for regular bail for the newly added cognizable and non-bailable offence. However, for arresting X on such addition of offence the investigating agency will need to obtain an order to arrest X from the court which had granted the bail to X.
In the matter of Pradeep Ram V/s State of Jharkhand, 2019 SCC Online SC 825, it was observed that:
“… 29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:
- The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
- The investigating agency can seek order from the court under Sections 437 (5) or 439 (2) for arrest of the accused and his custody.
- The Court, in exercise of power under Sections 437 (5) or 439 (2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Sections 437 (5) as well as 439 (2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.
- In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.”
- If anticipatory bail has been granted to the accused/ applicant by the Court of Session or the High Court then on addition of an offence (cognizable and non-bailable) the investigating agency cannot arrest the accused/ applicant without:
- The necessary/ requisite orders being passed by the concerned court which had granted the anticipatory bail, or,
- The anticipatory bail being cancelled.
- Thus, the position of law is that, if there is an addition of offence (cognizable and non-bailable) in the charge-sheet of which the accused on bail (anticipatory) is accused of freshly, then, as a matter of course, neither his liberty is to be forfeited, nor he should be asked to surrender and apply for regular bail.
- It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, for a direction under Section 439 (2) of the Cr.P.C. to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial etc.
- That the parliament has not thought it appropriate to curtail the power/ discretion of the court (Court of Session/ High Court), in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge-sheet is filed, or in serious crimes. Therefore, it would not be in the larger interests of society if court, by judicial interpretation, limits the exercise of that power; the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind Section 438 of the Cr.P.C.
- That the protection granted to a person under Section 438 of the Cr.P.C. should not invariably be limited to a fixed period; it should inure in favor of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) of the Cr.P.C. should be imposed; if there are specific facts/ features in regard to any offence, it is open for the court to impose any appropriate condition, in the interest of justice.
- That the life/ duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial; if there are any special/ peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
As we have seen through the course of our discussions, Section 438 of the CrPC is focused on maintaining the personal liberty of individuals by giving them the benefit of being innocent until proven guilty. It is important to remember that in order to get anticipatory bail, it is not necessary that the case be of an exceptional nature, thus it is not necessary that the accused make out a special case in order to be given anticipatory bail.
Who can get anticipatory bail?
It can only be invoked when a person has been accused of committing a non-bailable offence. Anticipatory Bail can be granted by either the Court of Sessions or the High Court as per Section 438(1). No period for the limit of the order of anticipatory bail has been specified in said section.
Is FIR necessary for anticipatory bail?
It is submitted that even in a case where no FIR is lodged and a person is apprehending his arrest in case the FIR is lodged, in that case, he can apply for “anticipatory bail” and after notice to the Public Prosecutor the Court can grant “anticipatory bail”.
How long does it take to get an anticipatory bail?
Normally the bail takes 15 to 30 days, as when you file a petition then the public prosecutor receives the petition he will file objections which takes few days, thereafter the arguments are heard then orders are passed , the whole process takes 15 to 30 days normally.
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