3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Custom Sear

SUBMIT CONTENT

About Us

Articles

Book Review

Conveyancing Deeds

Courses

Moot Court Competitions

Resume Guide

Sponsored Post

Write an Article

Contact Us

Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 1/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 2/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Home  »  Criminal Procedure   »   Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Meaning Of Anticipatory Bail And Procedure To

Grant Anticipatory Bail
By Ashish Agarwal | September 12, 2019 0 Comment

Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 3/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Introduction

The concept of anticipatory bail has been the by-product of judicial decisions on the
interpretation of Sections 496, 497 and 498 of the Code of Criminal Procedure, 1898. The
grant of anticipatory bail has now been crystallized into a legal concept in Section 438 of the
Code of Criminal Procedure 1973.

This provision precisely explains the meaning and procedure for grant of anticipatory bail
under the Code. The genesis of the concept can be traced to the recommendations of the
Law Commission, which thought it could be a useful addition to the protection of the rights
of a person.

Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 4/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

The Law Commission observed that “the necessity for granting anticipatory bail
arises mainly because sometimes in uential persons try to implicate their rivals in
false oases 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.”[1]

The Doctrine of Anticipatory Bail

In order to analyse the purpose, nature and scope of the doctrine of anticipatory bail as
enshrined in the Code of Criminal Procedure, 1973, it becomes indeed necessary to examine,
its legislative history brie y.

Under the previous Criminal Procedure Code, an important question arose whether
anticipatory bail could be granted. In Madhya Pradesh v. Narayan Prasad[2], the High Court
refused to grant such bail to an accused person because the court relied on the dictionary
meaning of bail according to which means bail is to ‘set free’ and anticipatory bail, the
person is not under any restriction but is completely free. Bail presupposes custody. If there
is no custody, there cannot be any bail.

Further, the court followed the Privy Council’s dictum in Emperor v. Nazir Ahmed[3] wherein
the Privy Council stated that the courts should not interfere in the working of the police
department if the actions are lawful and with proper authority. If an application of
anticipatory bail is allowed by a competent court, it interferes with the function of the police
in determining whether the person concerned has or has not committed an o ence.

Hence before the new Criminal Procedure Code came into operation there was a con ict of
judicial opinion about the power of the court to grant anticipatory bail. The majority view
was as shown above a very conservative one. The Law Commission in its 41st report rightly
pointed out the necessity for granting anticipatory bail in our country, as it must be in many
other countries. “Sometimes in uential persons try to implicate their rivals in false cases for
the purpose of disgracing them by getting them detained in jail for some days”[4].

The Supreme Court in Balchand v. State of Madhya Pradesh [5] laid down that in
order that the provision may not be abused by fraudulent applicants, the courts
should issue a notice to the Public Prosecutor of such application before the
application is heard and disposed of.
Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 5/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

In Balchand, the apex court observed that although § 438 Cr.P.C of the code does
not mention any such condition, justice and fair play requires that information
should be given to the other party to ensure that the party is able to respond in an
ordinate and proper manner to the court’s decision of granting bail.

Further, the Supreme Court laid down that though section 438 of the code does not
mention any condition that can be in icted upon the accused or arrestee, conditions under §
437 Cr.P.C can apply mutatis mutandis to this provision as well. This is because section 438
immediately follows section 437.

Nature and Scope of the Provisions Relating to Anticipatory Bail

It is now necessary to illuminate the very ‘nature and scope of this power’ as envisaged in the
code and the regulating principles laid down by the Courts. The power to grant anticipatory
bail is of an extraordinary character and must be exercised sparingly and only in exceptional
cases. § 438 is an application for anticipatory bail could be made “to the High Court or the
Court of Session” and that it could not be made in both the Courts.

The court relied on Amiya Kumar v State of West Bengal[6]. However, some guidelines for
the exercise of power under section 438 were ascribed in the words of Bhagwati J. as
follows:

“Section 438 does not contain unguided or unanalysed powers to pass an order for
anticipatory bail, but such an order being of an exceptional type can only be passed
if, apart from the conditions mentioned in Section 437, there is a special case made
out for passing the order. The words ‘for a direction under this section’ and ‘Court
may if it thinks t direct’ clearly show that the Court has to be guided by a large
number of considerations including those mentioned in Section 437 of the Code”[7].

Procedure to grant Anticipatory Bail

The most important consideration for the exercise of judicial discretion under section 438 is
the larger interest of the state and the society. The following two conditions are the sine qua
non for the exercise of the power of the court under section 438 can be invoked by the
petitioner:

1. There must be an accusation of the petitioner having committed a non-

bailable o ence. Obviously, this accusation must be an existing one or in anyPrivacy - Terms
https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 6/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

case stemming from the facts already in existence.

2. There must be reasonable apprehension or belief in the mind of the petitioner
that he would be arrested on the basis of such an accusation. The
simultaneous existence of both these conditions is a sine qua non for invoking
court’s jurisdiction.

Again in Onkar Nath Agrawai v. State[8], it was held that the power under section 438 is
not to be exercised in a vacuum but only on the satisfaction of the conditions spelt out in the
section itself. The conditions prerequisite for the court’s exercise of its discretion under
section 438 of the code is that the person seeking such relief must have a “reasonable
apprehension” of his arrest on an accusation of having committed a non-bailable o ence.

While dwelling on the meaning of ‘reasonable apprehension’, Barooah, J. of the Calcutta

High Court in Shyam Sunder Beriwala v. State, the court observed that for instance, “if an
order for investigation is passed by a Magistrate under Section 156 (3) of the Code, the
person concerned must necessarily have a reasonable apprehension that he may be arrested
though no formal F.I.R. has been led. In the instant case, even if the police had threatened
the petitioners that they may start afresh case against the petitioners, it cannot be said that
their apprehension or anticipation of their being arrested is reasonable”[9].

Guidelines to be Followed

In Gurbaksh Singh Sibba v. State of Punjab[10], the Hon’ble Supreme Court bestowed the
prerequisites to be followed by the competent Courts while granting anticipatory bail:

1. Ordinary bail is di erent from anticipatory bail because the primary one is
e ective after the person is taken into custody. It means rst the person is
arrested then released on bail. In the latter, i.e. anticipatory bail, it is operative
from the duration of the arrest. It means the person can be released even
from getting arrested.
2. The powers can be exercised by the Sessions Court and High Court and it is a
carte blanche power with broad discretion.
3. The competent courts must use their brain and application of subtle mind and
should not allow the Magistrate to decide whether bail should be granted or
not under § 437 of Cr.P.C.
4. Anticipatory bail orders are not blanket orders. The person anticipating
detention must have bona de reasons to believe that he may be arrested by
police for an o ence. Such belief is sine qua non to the court’s power to grantPrivacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 7/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

bail and vague apprehension that he may be arrested for a non-bailable

o ence so that the court may take care to specify the o ence or o ences in
respect of which alone order will be e ective and not a blanket order.
5. The courts while deciding on the question of anticipatory bail, must conform
to the requirements of § 438 Cr.P.C and rules made thereunder. The court may
impose conditions as it requires or deems t to allow the accused to appear
before it when required during the trial if any. The court, further, must give
notice to the Prosecutor of such application for grant of anticipatory bail but it
may give such notice after disposing of the application.
6. The court cannot restrict the duration of the bail order by specifying any
speci c time for which it shall be operative.
7. It has been a common phenomenon that rivals lodge false FIRs and wrong
cases to tarnish the image of their opponents or to humiliate them. If it
appears to the courts deciding on anticipatory bail that the o ence accused of
is due to some ulterior motive or hidden conspiracy, the court should allow the
bail provided the court ensures to its satisfaction that the person will not ee
from justice.
8. The court held that it is not necessary that an FIR must be lodged against the
person desirous of anticipatory bail to prove his apprehension.
9. An anticipatory bail order has no e ect on the power of the police to
investigate, i.e. to interrogate the accused, search his place and seize anything
that can be incriminating provided it is done lawfully.

References:-

1. V. Kelkar, Lectures on Criminal Procedure, (6th ed. 2017).

2. N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6th ed. 2018).
3. Varahabhattla Bhimachenulu, Genesis of the Concept of Anticipatory Bail,
Cochin University Law Review, 65-90 (1982).
4. Balsara, S.D. “Bail Not Jail – Empty the Prisons.”  Journal of the Indian Law
Institute, vol. 22, no. 3, 1980, pp. 341–350.  JSTOR,
www.jstor.org/stable/43950698.

[1] Law Commission of India, Forty- rst Report, pars 39.9 at 321, (1969).
Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 8/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

[2] Madhya Pradesh v. Narayan Prasad, A.I.R. 1963 M.P. 276.

[3] Emperor v. Nazir Ahmed, AIR. 1945 P.C. 18.

[4] Law Commission of India, Forty-First Report, para 39.9 at 321 (1969).

[5] Balchand v. State of Madhya Pradesh,

[6] Amiya Kumar v State of West Bengal 1971 Cri LJ 288(CAL)

[7] Balchand Jain v. the State of M.P., A.I.R. 1977 S.C. 366.

[8] Onkar Nath Agrawal v. State,

[9] Shyam Sunder Beriwala v. State, 82 C.W.N. 428 (1977-78).

[10] Gurbaksh Singh Sibba v. the State of Punjab, AIR 1980 SC 1632.

1. Analysis of provisions of Cr.P.C related to mandatory and discretionary

bail(Opens in a new browser tab)
2. Procedure of Dismissal of Complaint under the Code of Criminal Procedure,
1973(Opens in a new browser tab)

Share this:

 
Like this:

Loading...

Criminal Procedure

Author: Ashish Agarwal

Related Posts
Privacy - Terms
Meaning, Form and Content of Charge under the Cr.P.C, 1973
https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 9/10
3/25/2020 Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Procedure of Dismissal of Complaint under the Code of Criminal Procedure, 1973

Meaning and Purpose of Complaint and the Di erence Between an FIR and a Complaint

An Analysis of O enses under Cr.P.C that are Triable Together

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Legalbites Our Policies Contribute

About Us Disclaimer Write an Article

Advertise Privacy Policy Write Internship

Experience
Contact Us Terms of Service
Post Event

Collaborate
© 2020 Legal
Bites - Law And
Beyond .

Privacy - Terms

https://www.legalbites.in/a-critical-analysis-of-the-meaning-of-anticipatory-bail-and-procedure-to-grant-anticipatory-bail/ 10/10