Meaning of Anticipatory Bail and Procedure To Grant Anticipatory Bail
Meaning of Anticipatory Bail and Procedure To Grant Anticipatory Bail
Custom Sear
SUBMIT CONTENT
About Us
Articles
Book Review
Conveyancing Deeds
Courses
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
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]
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.
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].
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:
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.
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
References:-
[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
[4] Law Commission of India, Forty-First Report, para 39.9 at 321 (1969).
[7] Balchand Jain v. the State of M.P., A.I.R. 1977 S.C. 366.
[10] Gurbaksh Singh Sibba v. the State of Punjab, AIR 1980 SC 1632.
Share this:
Like this:
Loading...
Criminal Procedure
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
Meaning and Purpose of Complaint and the Di erence Between an FIR and a Complaint
This site uses Akismet to reduce spam. Learn how your comment data is processed.
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