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BANARAS HINDU UNIVERSITY

LBH-123:- LAW OF CRIMES-II (CRIMINAL

PROCEDURE CODE)
TOPIC:- ANTICIPATORY BAIL

SUBMITTED TO SUBMITTED BY
PROF. P.K. SINGH NEELESH SAHU
FACULTY OF LAW,BHU 20225LLB226
L.L.B (HONS)
SECTION B
SEMESTER II
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ACKNOWLEDGEMENT
During the course of writing this assignment ‘ANTICIPATORY BAIL’ I have
received help, encouragement and assistance from my professors, books, friend
and some websites on internet. I am thankful to all of them.

I am greatful to my professor PROF. P.K. SINGH SIR for theirsupport and

encouragement that they provided me during the preparation of this assignment.

NEELESH SAHU

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Table of Contents:-
A. Introduction 4
B. History 5
C. Definition 6
D. Jurisdiction 6
E. Discretion of Court 7
F. Applicability 8
G. Offences and Anticipatory Bail 9
H. Case Laws 10
I. Conclusion 14
J. Bibliography 15

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Anticipatory Bail

Introduction

The offences that are committed by the criminals leads to the punishment
of being arrested or imprisoned. The time period of imprisonment differs from
case to case which can last for lifetime and can also turn into death penalty. The
remedy to imprisonment is bail. "Bail refers to release of a person from the
custody or imprisonment either before the end of time period of punishment or
at the end of it." The concept of bail is stated under Code of Criminal
procedure. Sections 436- 439 explain bail. The bail can be granted by magistrate
and police.

In Sunil Fulchand v. Union of India, the Supreme Court stated: – “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 could
still be exercised through the conditions of the bond secured from him [1].” Bail
has a deep rooted history in English and American Law.

Types of Bail in India:

Regular Bail: It is a direction given by the Court (any Court within the
country) to release a person who is already under arrest and kept in police
custody. For such Bail, a person can file an application under Section 437 and
439 of the CrPC.

Interim Bail: Bail granted for a temporary and short period by the Court
till the application seeking Anticipatory Bail or Regular Bail is pending before a
Court.

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Anticipatory Bail: A direction issued to release a person on Bail even

before the person is arrested. In this situation, there is apprehension of arrest
and the person is not arrested before the Bail is granted. For such Bail, a person
can file an application under Sec. 438 of the Code of Criminal Procedure
(CrPC). It is issued only by the Sessions Court and High Court ‘Anticipatory
Bail’ a word widely used in parlance of litigation but which does not owe its
origin to a statute. Neither section 438 of Cr.P.C. nor its marginal note so
describes it but, the expression ‘anticipatory bail’ is a convenient mode of
conveying that it is possible to apply for bail in anticipation of arrest. In fact
‘anticipatory bail’ is a misnomer. It is not a bail presently granted by the Court
in anticipation of arrest. When the court grants anticipatory bail it means is that
in event of arrest the person shall be released on bail.

History-

Historically, the Code of Criminal Procedure, 1898 (old Code) did not
contain specific provision corresponding to Section 438 of the present Code of
1973. Under the old Code, there was a sharp difference of opinion amongst
various High Courts on the question whether a Court had inherent power to
make an order of bail in anticipation of arrest. The preponderance of view,
however, was that it did not have such power [2].

Law Commission of India in its 41st Report to introduce provision

relating to Anticipatory bail. The Law Commission in its 48th Report in the year
1972 recommended acceptance of suggestion. The object of Section 438 is to
prevent undue harassment of the accused persons by pre-trial arrest and
detention.

To get anticipatory bail the person seeking it, must approach the Court of
Sessions or the Supreme Court and citing section 438 of the Criminal Procedure
Code also as giving proper reason, apply for it. If the court, supported variety of

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conditions and therefore the nature of the case, sees merit within the petition the
bail is granted. Hence if and when the person is arrested, he/she are going to be
immediately released on the idea of the anticipatory bail.

As most things have a dark side so do this provision of the code. The
object behind enacting this law was to prevent the innocent from getting trapped
but with time the picture has changed and now persons accused of heinous
offences and even habitual offenders are invoking it repeatedly, which was not
the intent of the relief sought to be given by this section.

Definition

The words anticipatory bail is not defined in S. 438.

In the case of Balchand Jain vs. State of M.P [3], it was stated that,
anticipatory bail is a misnomer as it is not bail presently granted in anticipation
of arrest. When the court grants anticipatory bail, what it does is to make an
order that in the event of arrest a person shall be released on bail. Manifestly
there is no question of release on bail unless a person is arrested and, therefore,
it is only upon arrest that an order granting ‘anticipatory bail’ becomes
operational.

Jurisdiction

According to section 438(1), an application for anticipatory bail is made

to the High Court or the Court of Session. There is no specific mention in
Section 438 as to where the anticipatory bail first lies. However, it is normally
presumed that the Court of Session would be first approached for the grant of
"anticipatory bail" unless an adequate case is made out fir straightway
approaching the High Court directly, without first coming before the Court of
Session. When the application of anticipatory bail is rejected by the Court of
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Session then a fresh application can be made in High Court, there is no bar in
making an application to the higher court.

The Court within whose jurisdiction the arrest has been apprehended has
the jurisdiction to admit the application of anticipatory bail. The opinions
expressed by the Supreme Court in some cases seem to favor the view that the
question of granting anticipatory bail to any person who is allegedly concerned
with the offence must for all practical purposes be considered by the courts
within whose territorial jurisdiction such offence could have been
perpetrated.[4]

Discretion of the Court

The word "may, if it thinks fit" used in Section 438(1) and the absence of
any specific restraints on the exercise of the power to grant "anticipatory bail"
clearly indicates that the legislature intended to confer and has in fact conferred
very wide discretion on the High Court and the Court of Session to grant
anticipatory bail.

The power to grant anticipatory bail should be exercised cautiously and in

exceptional cases only. The Court must satisfy itself that grant of anticipatory
bail is the utmost requirement of the applicant in order to safeguard his
legitimate rights. Although the power appears to be unguided, it is in fact
required to be exercised subject to limitations imposed by Section 437 on the
power of granting bail. In addition to the limitations incorporated in Section
437, the petitioner must make out a special case for getting anticipatory bail.
Reasons must be provided for the use of this discretionary power. Indirect use
of the power to grant bail would be an abuse of the judicial process and would
shake the confidence of the general public in the judiciary.

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Applicability

1. The section applies to all non- bailable offences.

2. The cases where the punishment extends to death penalty or lifetime

imprisonment, the applicability is not confined. [5]

3. The section is applicable to all bailable and non- bailable offences. [6]'

 Conditions for granting Anticipatory bail

 The person must be in apprehension of getting arrested. The apprehension

must be reasonable.
 The person must appear in the court whenever called or required.
 The person must not at any stage disagree to introduce the facts of the
case.
 The person must no leave the territory of India without the permission of
the court or whatever the case maybe.
 The person must not cause threat to someone for telling the facts of the
case.

Praveen Bhatia and Others vs. State of Punjab and Another

This case regards with grant for arrest bail in respect of non bail able
warrants issued against the petitioners in this case. They are filing the petition
for grant of pre-arrest bail as the learned Chief Judicial Magistrate, Chandigarh
has issued.

Who may be released on Bail?

The court may direct the following persons may be released on bail,

i. Any person under the age of 16.

ii. Any person above the age of 60.
iii. Any woman.
iv. Any sick of infirm person.
v. In case of further inquiry.

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vi. Rule of consistency.

vii. Cross case.

Refusal to bail

A bail may be refused when there is an a unacceptable risk of certain

behaviors like the accused person might not appear in court, commit further
offences while on bail. A person charged with a crime should not be denied
freedom unless and until there is a good reason. The main reason for refusing
bail is that the defendant is accused of an imprisonable offence and there are
substantial grounds for believing that the defendant would abscond.

Anticipatory bail became part of the new CrPC in 1973 (when the latter
replaced the older Code of 1898), after the 41st Law Commission Report of
1969 recommended the inclusion of the provision. In the 1980 Gurbaksh Singh
Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then
Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the
light of Article 21 of the Constitution (protection of life and personal liberty).

Offences and Anticipatory Bail

An application for anticipatory Bail can be filed in cases of both bailable
and non-bailable offences. While in the former situation, the Bail is granted as a
matter of right, the grant of Bail in the latter situation is not a matter of right but
a privilege & is at the behest of the discretionary power of the Court.

Bailable Offence: Sec. 436 of the CrPC lays down provision for granting
Bail to a person accused of any bailable offence under the IPC.

Bailable offences are offences or crimes that are not very serious in
nature and include: unlawful assembly (Sec. 144 of CrPC), payment of bribe
during elections, fabrication of false evidence, participation in riots, furnishing
false information, causing death by negligence (Sec. 304A), stalking, criminal
defamation, etc.

Non-bailable Offence: Sec. 437 of the CrPC lays down the power of court
to grant Bail to a person accused of committing a non-bailable offence under the
IPC.

Non-bailable offences are grave and serious offences which include:

sedition, waging or attempting to wage war against the government,

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counterfeiting of Indian currency, murder (Sec. 302), dowry death (Sec. 304B),
abetment of suicide, trafficking of a person, rape (Sec. 376), etc.

Cancellation of Anticipatory Bail

Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory
Bail. They imply that a Court which has the power to grant anticipatory Bail is
also empowered to cancel the Bail or recall the order related to Bail upon
appropriate consideration of facts.

A High Court or Court of Session may direct that any person who has
been released on Bail by it- be arrested, and brought under custody after filing
of an application by the complainant or the prosecution.

However, a Court does not have the power to cancel the Bail granted by
the police officer.

Case Laws
In the case of Amiya Kumar v. State of West Bengal [7], it was held
that section 438 of the code empowers both high court and session’s court to
grant the anticipatory bail. Both the courts have the competency to grant this
bail. If the Sessions court rejects the petition filed by the applicant for the
anticipatory bail, he can’t file the petition for the same in the high court.

In the case of D. R. Naik v. State of Maharashtra [8], it was held if a

person files an application for anticipatory bail and it is rejected by Sessions
court, it will not put the bar over the person filing the petition to approach High
court. But if the person first approaches the high court and petition filed by him
gets rejected, then he can’t approach the session’s court for filing the petition on
same ground.

Gurbaksh Singh Sibbia vs State of Punjab (1980) case: SC ruled that

“Sec. 438(1) should be interpreted in the light of Article 21 (protection of life
and personal liberty) of the Constitution.” Granting of anticipatory Bail as a
matter of right of an individual should not be limited by time. The Court could
impose appropriate restrictions on a case-by-case basis.

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Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case:

SC overruled its earlier judgment and held that “granting of anticipatory Bail
should be limited by time.”

SS Mhetre vs State of Maharashtra & Ors (2010) case: SC held that

“life/duration of an order granting anticipatory Bail could not be curtailed.”

INX media case 2020 The Court, however, noticed that ordinarily, arrest
is a part of the process of the investigation intended to secure several purposes.
There may be circumstances in which the accused may provide information
leading to discovery of material facts and relevant information. Grant of
anticipatory bail may hamper the investigation.

“Pre-arrest bail is to strike a balance between the individual’s right to

personal freedom and the right of the investigating agency to interrogate the
accused as to the material so far collected and to collect more information which
may lead to recovery of relevant information.”

Due to such divergent views, the Court had to decide on two questions in
the recent Sushila Aggarwal (2020) case-

 Should there be a fixed time period to seek anticipatory Bail, so as

to enable a person to surrender before the Trial Court and seek for
regular Bail? Also, should the life of anticipatory Bail end at the
time of summoning by the Court?
 Can Courts impose any conditions while granting such Bail or not?

Also, recently the SC in the Prathvi Raj Chauhan vs Union of India

(2020) case, observed that provisions of anticipatory Bail (Sec. 438) shall not
apply to the cases under Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act 2018.

Sushila Aggarwal (2020) Case Judgment

 There is nothing in CrPC that indicates the grant of anticipatory

Bail should be time-bound.

 However, under CrPC, it is discretionary power of the Court

to decide on a case-to-case basis (depending upon the stage
at which the Bail application has moved or prevalence of any
peculiar circumstances necessitating to limit the tenure) and
impose a time limit while granting pre-arrest Bail.

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 Also, this duration primarily does not end after first

summoning by the Court and can continue till the end of the
trial period.

 If any Court wants to limit the Bail, it can attach special features or
circumstances warranting the same.

 The Court while granting anticipatory Bail, should examine

the seriousness and gravity of the offence (like nature of the
crime, material placed on records, etc.) to impose any
condition on the petitioner, if necessary.
 The police can reach the Court seeking permission for arrest
in case of breach of such imposed conditions.

 Application for anticipatory Bail could be filed by a person before

the FIR (First Information Report) as soon as the facts make clear
there is a substantial reason for the arrest.
 Appellate jurisdiction to check the correctness of the granted Bail
lies with the superior Court on the request of the investigating
agency or the State.
 The Court remarked that “when Parliament has not thought it
appropriate to curtail the rights of the citizens and the power of
Courts in granting anticipatory Bails, hence, it is not in larger
societal interest to curtail such powers & limit the liberty of
citizens. The rights of the citizens are fundamental and not the
restrictions.”

Section 438 is a procedural provision which is concerned with personal

liberty of an individual, entitled to the benefit of the presumption of innocence
since he is not, on the date of his application for anticipatory bail, convicted of
the offence in respect of which he seeks bail. Although the power to release on
anticipatory bail can be described as of an “extraordinary” character this would
“not justify the conclusion that the power must be exercised in exceptional cases
only.” It is not necessary that the accused must make out a “special case” for the
exercise of the power to grant anticipatory bail.

No straight jacket formula can be prescribed for universal application in

cases of anticipatory bail as each case has to be considered on its own merits
and in its facts and circumstances. Personal liberty being a very precious
fundamental right should be curtailed only when it becomes imperative
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according to the peculiar facts and circumstances of the case. In case, the State
considers the following suggestions in proper perspective then perhaps it may
not be necessary to curtail the personal liberty of the accused in a routine
manner:

 Direct the accused to join investigation and only when the accused
does not cooperate with the investigating agency, then only the
accused be arrested.
 Seize either the passport or such other related documents, such as,
the title deeds of properties or the Fixed Deposit Receipts/Share
Certificates of the accused.

Direct the accused to execute bonds;

 The accused may be directed to furnish sureties of number of

persons which according to the prosecution are necessary in view
of the facts of the particular case.
 The accused be directed to furnish undertaking that he would not
visit the place where the witnesses reside so that the possibility of
tampering of evidence or otherwise influencing the course of
justice can be avoided.
 Bank accounts should be frozen for small duration during
investigation.

It is an established principle that discretion vested in the court, in all

matters should be exercised with care and circumspection depending upon the
facts and circumstances justifying its exercise. Similarly, the jurisdiction under
section 438 Cr.P.C. should be exercised by the court in a wise and careful
manner which by their long training and experience they are ideally suited to
do. There is no justification for reading into section 438 Cr.P.C. the limitations
mentioned in section 437 Cr.P.C. The plentitude of the section must be given its
full play.

The provisions of Section 438 should not be suspected as containing

something volatile or incendiary, which needs to be handled with the greatest
care and caution imaginable. A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of its intemperate use.
Neither inflexible guidelines can be provided for grant or refusal of anticipatory
bail nor should any attempt be made to provide rigid and inflexible guidelines in
this respect because all circumstances and situations of future cannot be clearly
visualized for the grant or refusal of anticipatory bail. In any event, this is the

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legislative mandate which the Courts are bound to respect and honor.
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.

Conclusion

The terms bail and anticipatory bail are correlated but different from each
other. The bail can be granted at different stages but, anticipatory can be asked
for before the complaint is filed. Both have different condition imposed along
with them. Anticipatory bail is a kind of bail provided under CrPC but, has a
different applicability and conditions to be filed.

But since the state legislature have been given requisite powers to amend
the provisions of the code, subject to the other provisions of the constitution, so
states likes Maharashtra, Orissa, West Bengal have a little different anticipatory
bail provisions, where as Uttar Pradesh does has even omitted provision of
Section 438, and so there is nothing like Anticipatory bail in state of Uttar
Pradesh. As most things have a dark side so do this provision of the code. The
idea behind enacting this law was to prevent the innocent from getting trapped
but with time the picture has changed and know persons accused of heinous
offences are invoking it repeatedly, which was not the intent of the relief giving
provision, which is a big concern. Over the years, anticipatory Bail has acted as
the protection (granted under Sec. 438 of CrPC) to safeguard a person against
whom false accusation or charges have been made. But law and guideline
needed to be reviewed to make it more effective

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Bibliography

1. AIR 2000 SC 1023

2. Savitri Agarwal V State of Maharashtra (2009) 8 SCC 325
3. BalchandJain v. State ofM.P., AIR 1977 SC 366 (1977) 2 SCR 52
4. Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996
5. State ofAndhraPradesh v. BtrnalKnishna Kundu, AIR 1997 SC 3589
6. Sunesh Vasudeva v. State, 1978 Cr. LJ 677 (Del)
7. Amiya Kumar v. State of West Bengal 1978 Cri.LJ 288
8. D. R. Naik v. State of Maharashtra 1989 Cri.LJ 252
9. Indiankanoon.Org
10. "Know your Law: Anticipatory bail".

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