ANTICIPATORY BAIL – A MISNOMER

The expression ‘anticipatory bail’ has not been defined in the Code. But as observed in Balchand Jain v. State of M.P.[1], anticipatory bail means a bail in anticipation of arrest. The expression ‘anticipatory bail’ is a misnomer inasmuch as it is not as if bail presently granted in anticipation of arrest. Where a competent court grants `anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.[2]

The historical perspective of anticipatory bail has been captured lucidly in the judgment of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra[3], which reads as follow:

“9. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.

10. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”. It observed in para 39.9 of its report (Volume I) and the same is set out as under:

‘39.9. Anticipatory Bail.- The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases 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. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.’

The Law commission recommended acceptance of the suggestion.

11. The Law Commission in Para 31 of its 48th Report (July 1972) made the following comments on the aforesaid clause:

‘31. Provision for grant of anticipatory bail.-The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.

It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.’

12. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest.”

Section 438, CrPC reads as follow:

438. Direction for grant of bail to person apprehending arrest.-

(1) 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:-

(i) the nature and gravity of the accusation;

(ii) 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;

(iii) the possibility of the applicant to flee from justice; and

(iv) 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.

(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including –

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) 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;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

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

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of nay person on accusation of having committed an offence under sub-section (3) of section 376 or section 386-AB or section 376-DA or section 376-DB of Indian Penal Code (45 of 1860).

From the reading of the above provision, it is clear that the person, who has reason to believe or apprehends his arrest in relation to the commission of a non-bailable offence, can either approach the High Court or the Court of Session for relief of anticipatory bail. The apprehension must be real and based on tangible material, which must be capable of being examined by the Court objectively because it is the only material available with the Court to determine whether the apprehension of the applicant about his arrest is justifiable. Mere fear is not belief.[4] The apprehension must also be specific and must deal with the particular factual scenario because the Court entertaining anticipatory bail application should not and cannot pass a blanket order under Section 438, directing the police to not arrest the applicant, “wherever arrested and for whatever offence”. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police in enforcing the law and preventing the commission of offences in the future.[5] However, registration of FIR is not a condition precedent for seeking anticipatory bail.

The Court of Session and the High Court exercise concurrent jurisdiction in the matter of anticipatory bail. One of the often-raised jurisdictional issue is that ‘Can the applicant directly approach the High Court without exhausting his remedy before the Court of Session?’. There are divergent views taken by the different High Courts. One school of thought is that there is no express bar in Sec. 438, CrPC to directly approach the High Court, therefore, the Court cannot substitute itself in the place of the legislature and impose such restriction. The other school of thought is that it is a matter of judicial propriety that the lower court must be approached first before the matter is taken up before the High Court unless special reasons demand otherwise. In this regard, suggestions have also been made by the Law Commission in its 203^rd Report to resolve the issue, however, until date, there is no amendment in answer to this query.

The factors to be considered while granting anticipatory bail is enunciated in Sec. 438(1), CrPC. The Supreme Court also had an occasion to elaborately deal with the factors for granting anticipatory bail in its judgment in the matter of Siddharam Satlingappa Mhetre v. State of Maharashtra[6], wherein it is observed as follows:

122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. The possibility of the applicant to flee from justice;
4. The possibility of the accused’s likelihood to repeat similar or the other offences;
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Per contra, the limitation under Sec. 437, CrPC cannot be read into Sec. 438, CrPC for the purpose of granting anticipatory bail.[7]

The relief cannot be denied merely for the purpose of discovery of fact leading to the recovery of the incriminating object. When a person directly gives information to the police officer by word of mouth, may be deemed to have submitted himself under ‘custody’ of the police officer within the meaning of Sec. 27, the Indian Evidence Act. Further, conditions can also be imposed in the bail conditions to co-operate with the investigation to facilitate the discovery of the fact.[8] Likewise, while granting anticipatory bail, the Court should not invariably impose a time limit for the enjoyment of the order, however, if facts require, the Court is well with the discretion to impose the same.[9] Similar is the case with other conditions also, the conditions imposed must not be onerous that it makes the order illusory in nature, every condition imposed needs to be backed with a justifiable purpose. The Supreme Court has also observed that it was not mandatory for the police to arrest a person only because his/her anticipatory bail had been rejected.[10]

Sec. 438, CrPC confers power on the Courts to grant anticipatory bail in the form of an interim order, however, the Supreme Court in Adri Dharan Das v. State of West Bengal[11] observed that ‘An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.’. The above-judgment was implied overruled by the Constitutional Bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)[12], wherein it has observed that the Courts are empowered to grant ad-interim orders in anticipatory bail applications, subject to such orders being in conformation with the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.

One other facet of this issue is the crime being registered in one state and the accused resides in another state. Naturally, the applicant seeks relief before the Court within whose jurisdiction, the accused resides. The predominant issue that is disputed is whether the Court which does not have the jurisdiction to provide a final relief, grant interim orders in such matter?

The Madras High Court after referring to a series of judgments of the various High Courts including the observation of the Supreme Court held that the High Court within whose jurisdiction the person resides has the jurisdiction to grant interim relief because the arrest is effected within its jurisdiction, however, the power is limited in nature, restricted only to grant interim relief, thereby enabling the accused/applicant to approach the concerned jurisdictional Court within whose jurisdiction the crime is registered for seeking anticipatory bail.[13]

To conclude: The Supreme Court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Others[14] held that “If dignity or honour vanishes what remains of life”? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its III Part. Therefore, the Legislature had meticulously drawn Section 438, Cr.P.C. to balance the right to personal liberty of the individual and safety of the public at large.

[1] (1976) 4 SCC 572.

[2] Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305.

[3] (2011) 1 SCC 694.

[4] Savitri Agarwal v. State of Maharashtra, (2009) 8 SCC 325.

[5] Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.

[6] (2011) 1 SCC 694.

[7] Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.

[8] State of UP v. Deoman Upadhyaya, 1961 (1) SCR 14.

[9] Ibid.

[10] M.C.Abraham v. State of Maharashtra, (2003) 2 SCC 649.

[11] (2005) 4 SCC 303.

[12] 2020 SCC Online SC 98.

[13] A.L.Ramachandra v. Commissioner of Police, Coimbatore City, 2014 SCC Online Mad 10237.

[14] (1994) 6 SCC 260.