ARMY INSTITUTE OF LAW, MOHALI

PROJECT ON “Anticipatory Bail”

Project Submission in the Partial Fulfillment of Periodic Evaluation of Indian

Penal Code (IPC).

Submission To: Submitted By:

Dr BAJIRAO A RAJWADE AKASH TIWARI

FACULTY: 8th SEMESTER B.A. LL.B.

CrPC ROLL NO: - 1735

ACKNOWLEDGEMENT
This project consumed a huge amount of work, research and dedication. I would like to express
my deepest appreciation to all those who provided me with the possibility to complete this
project work.

Sincere gratitude to our Professor, whose superior knowledge and contribution in stimulating
suggestions helped me to coordinate my full effort in achieving the project.

Furthermore, I would also like to acknowledge with much appreciation the crucial role of
management of Army Institute of Law, who gave the permission to use all required equipment
and necessary material to complete this task of research.

AKASH TIWARI

Roll No. - 1735

INTRODUCTION
The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest
in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in order to
get temporary freedom until his case is disposed of. Depending on the gravity of the
allegations, a person may be able to avoid arrest altogether. However, there are cases in which
arrest is made and the accused is set free as per the provisions of the bail as given under the
Criminal Procedure Code. In cases of Criminal cases, especially those pertaining to dowry,
anticipatory bail comes as a relief to many accused persons. It is literally applied for in
anticipation of arrest.

SECTION 438 OF CODE OF CRIMINAL PROCEDURE, 1973

Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions regarding the
Anticipatory Bail. The words “anticipatory bail” has not been defined in the code. The
expression “anticipatory bail” is a misnomer and the order becomes operative only on arrest.

Section 438 of the Code reads as under: -

“Direction for grant of bail to person apprehending arrest”

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-

The nature and gravity of the accusation;

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;
The possibility of the applicant to flee from justice; and.

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

OBJECT

Right to life and personal liberty is an important right granted to all the citizens by the
Constitution. It is one of the precious rights. The legislative history of the provision reveals that
the Joint Select Committee of Parliament had initiated a thought that bail should be made
available in anticipation of arrest so that liberty of an individual may not be unnecessarily
jeopardized. It then asked the Law Commission of India to take into consideration this matter
and the section have been added as a result of its report. No person should be confined in any
way until and unless held guilty as it is in conflict with the very nature of Right to life and
personal liberty.

WHY ONE REQUIRES ANTICIPATORY BAIL?

Section 438 of the Code clearly stipulates in the beginning statement itself that when a person
has a reasonable apprehension to believe that they can be arrested on an accusation for
commitment of a non-bailable offence they can move to the High Court or the Court of
Sessions for grant of an “anticipatory bail”. For instance, Mr. A got married to Ms. W. After
their marriage the things were not smooth between them. Ms. W then filed a case against him
under section 498(A) of Code of Criminal Procedure, 1973. He had a reasonable apprehension
that he could be arrested so he moved to the court for grant of an “anticipatory bail”.
According to Blackstone’s formulation in criminal law: -
“It is better that ten guilty persons escape than that one innocent suffers”.

The power to grant anticipatory bail must be exercised by the Court in very exceptional cases.
The court must be satisfied that there is a reasonable cause and a reasonable ground for grant of
anticipatory bail. In Gurbaksh Singh Sibbia v. State of Punjab 1 the Supreme Court held that:
– “Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must
be satisfied that the applicant invoking the provision has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief 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. The grounds, on which the belief of the applicant is
based that he may be arrested for a non-bailable offence, must be capable of being examined
by the Court objectively. Specific events and facts must be disclosed by the applicant in order
to enable the Court to judge of the reasonableness of his belief, the existence of which is the
sine qua non of the exercise of power conferred by the Section.”

The section protects the Right of Life and Personal Liberty of such persons by providing them
with a remedy against frivolous detention. In a country where rifts and rivalries are common,
its citizens should have a remedy which prevents disgracing their Right to Life and Personal
Liberty.

PROCEDURE FOR GETTING AN ANTICIPATORY BAIL

For getting the anticipatory bail the person may approach the High Court or the Sessions Court.
As soon as the person apprehends that they may be arrested under section 406, 434 or under
section 498A they should consult a good lawyer for grant of an anticipatory bail. The Lawyer
will then file a “wakalatnama” in the appropriate district court with the required anticipatory

1
AIR 1980 SC 1632
bail petition. Then there will be a hearing scheduled by the court for the petition. The person
must try to accompany the Lawyer to the court so that the court can hear their version of the
case. Although there are no provision in Section 438 for issuing notice to the Public Prosecutor
(lawyer which appears on behalf of the government) and hearing by the court but as held by the
Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, “a notice should be issued to
the Public Prosecutor or the Government advocate before passing final order granting
anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the
court may pass such order, issuing notice to the Public Prosecutor by making it returnable and
may pass final order after hearing both the sides.” After the 2005 amendment it is compulsory
for the court to hear the Public Prosecutor. Many a times it happens that the District and
Sessions Court denies the Anticipatory Bail, then the person must and shall appeal in the High
Court and the High Court generally grants the Anticipatory Bail. After the bail is granted there
are few formalities that have to be followed before the person is finally out on Bail. The Court
has a power to put some conditions and restrictions. These are:-

A condition that the person shall make himself available for interrogation by a 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;

Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail
were granted under that section.

DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY

BAIL

In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that: -
“The distinction between an ordinary order of bail and an order of anticipatory bail is that
whereas 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. Police custody is an inevitable concomitant of arrest for non-bailable
offences. An order of anticipatory bail constitutes, so to say, an insurance against police
custody following upon arrest for offence or offences in respect of which the order is issued. In
other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs
that if the person in whose favor it is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be released on bail.”

CANCELLATION OF ANTICIPATORY BAIL

Though there is no specific provision in Section 439 regarding cancellation of bail, it is

implicit that the Court which grants anticipatory bail is entitled upon appropriate consideration
to cancel or recall that order.[5] Anticipatory Bail is a special privilege granted to the person
apprehending arrest and it should not be abused in any manner. Even in absence of an express
provision of cancellation of bail in the Code, the power of cancellation springs from the
overriding inherent powers of the High Court and can be invoked in exceptional cases only
when the High Court is satisfied that the ends of justice will be defeated unless the accused is
committed to custody.[6]

RECENT LANDMARK JUDGMENTS ON LAW OF ANTICIPATORY

BAIL

No time limit could be fixed while granting Anticipatory Bail

Sushila Agarwal v. State of Delhi2

The Hon'ble court was pleased to frame 2 questions while deciding the landmark judgment
viz.:

1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited to
a fixed period so as to enable the person to surrender before the trial court and seek regular bail

2. Whether life of anticipatory bail should end at the time and stage when the accused is
summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by holding
that there can be no time limit set for the Anticipatory Bail by the court granting the same. The
five-judge bench was pleased to unanimously hold that " the protection granted to a person
under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in
favour of the accused without any restriction on time."

Answering the second question the Hon'ble court held that "The life or 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.
Again, if there are any special or peculiar features necessitating the court to limit the tenure of
anticipatory bail, it is open for it to do so."

2
2020 SCC OnLine SC 98
The Supreme Court was cautious while answering the second question by granting
discretionary powers to the court to limit the tenure of the Anticipatory Bail in case of special
or peculiar facts of case.

Not granting Anticipatory bail may cause violation of fundamental rights of an individual
under Article 21 of the Constitution of India

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat3 was
pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code is
conceptualized under Article 21 of the Constitution which relates to personal liberty.
Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of
Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal
process which directs that if the person in whose favor it is issued is thereafter arrested on the
accusation in respect of which the direction is issued, he shall be released on bail."

The apex court while observing the above celebrates the two provisions and related them
together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand
and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld the
fundamental right of the citizen.

Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with

maximum 7 years imprisonment

3
(2016) 1 SCC 152
Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar4 while deciding an
application for Anticipatory bail application for offences u/s 498A, felt it necessary to observe
that there should be a mandatory notice u/s 41A to be sent to the accused if he is booked for
offence with punishment up to 7 years.

Rights of First Informant to intervene in Anticipatory Bail Application

The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of Maharashtra 5
held that, if victim of the offence appeared in the court seeking permission to be heard, then
opportunity of being heard is to be given to him or her.

However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra,6
took a slightly contrary view to what we discussed above. The court held that "The upshot of
this analysis is that no vested right is granted to a complainant or informant or aggrieved party
to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is
given to him but he must always bear in mind that while the prosecution must remain being
robust and comprehensive and effective it should not abandon the need to be free, fair and
diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all
times remain in control of the prosecution and a counsel of a private party can only assist the
Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved
party may, however, be heard at a crucial and critical juncture of the trial so that his interests in
the prosecution are not prejudiced or jeopardized.

Is it Mandatory for police to arrest a person only because his Anticipatory Bail
Application is rejected?
4
(2014) 8 SC C 273
5
2009 ALL M.R. (Cri.) page 687
6
(2014) SCC online SC 257
The Hon'ble Supreme Court, in case of M.C Abraham and Anr v. State of Maharashtra and
Anr7, has held that it is not mandatory for the police to arrest a person merely because his/her
Anticipatory Bail has been rejected.

CONCLUSION

Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a
person. No person can be deprived of his personal liberty and can be detained unnecessarily.
But utmost care should be exercised by the Courts while granting it so as to prevent the abuse
of this special privilege. The Hon’ble Supreme Court of India has emphasized on this point
time and again through a catena of judgements. Anticipatory bail is a device to secure the
individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any
and all kinds of accusation, likely or unlikely.

The scope and ambit of the law on anticipatory bail has been pointed out by the judiciary time
and again. Since the inclusion of Section 438 in the Code was envisaged as an antidote for
preventing arrest and detention in false cases, it is in larger public interest that Section 438 is
interpreted fairly under Article 21, to keep arbitrary and unreasonable limitations on personal
liberty at bay. In the immortal words of Mahatma Gandhi, “To deprive a man of his natural
liberty and to deny him the ordinary amenities of his life is worse than starving the body;
it is starvation of the soul, the dweller in the body.”

7
[(2003) 2 SCC 649]