Lawwatch

Anticipatory Bail & its Legalities

What is an anticipatory bail?

Anticipatory bail is a kind of bail that a person accused of committing a non bailable offence and apprehending arrest can apply for under the Section 438 of the Criminal Procedure Code, 1973 (CrPC). It is issued by the High Court or the Court of Sessions.

Anticipatory bail is a pre-arrest bail. In the order of bail, the court gives a direction that the accused person should be released on bail in the event of his arrest by the police. No anticipatory bail can be issued after the arrest of the person.

Anticipatory bail is an extra ordinary privilege. It should be granted in exceptional cases only.

Objective of anticipatory bail

The prime objective of this provision is to avoid unnecessary and unlawful harassment, arrest and jailing of any person from any prima facie false or frivolous criminal case instituted by someone out of animosity or deep seated ill will, in order to humiliate the person.

Anticipatory bail is intended as a preventive mechanism to avoid such unnecessary humiliation when the accusation appears to stem from some ulterior motive and the object of it is to injure and humiliate the applicant by subjecting him to arrest. If it appears to the court that the order of anticipatory bail is a disguised attempt of the accused to flee from justice, then the court should not issue such an order.

The anticipatory bail protects the accused from unnecessary arrest and deprivation of liberty in the event of such unfounded accusation and crime registration.

Anticipatory Bail provides immunity from arrest

In making the arrest the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested.

A direction of bail under the Section 438 CrPC confers a conditional immunity from this ‘touch’ or confinement required for the arrest.

Higher courts alone can grant pre-arrest bail

Application for anticipatory bail can only be filed before a High Court or a Court of Session. Both courts have concurrent jurisdiction. But it is better to approach the Court of Session first, even though there is no such rule. If so, the party can approach the High Court on rejection of his/her application by the Court of Session.

No magistrate court is authorised to take up an application for anticipatory bail.

Application should contain facts

When a person complains of apprehension of arrest and approaches the court for order, the application should be based on concrete facts but should not be based on vague or general allegations.

The application should contain essential facts relating to the probable offence, and describe why the applicant reasonably apprehends arrest. These are essential ingredients required for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed.

Interim order will be issued initially

In an application for anticipatory bail the court will issue an interim order initially possibly on the first day of hearing of the application.

The court will then issue a seven day notice along with a copy of such interim bail order to the Public Prosecutor and the Superintend of Police. The purpose of this notice is to give the Public Prosecutor a reasonable opportunity of being heard when the court finally hears the application. The police then can inform the court their version.

If the court rejects the application for anticipatory bail then it is open for the police to arrest him.

Factors to be considered while granting bail

The court must take the following broad factors into consideration before allowing or rejecting an application for anticipatory bail.

  1. The nature and gravity of the accusation

  2. The antecedents of the applicant such as his previous conviction or imprisonment.

  3. The probability of applicant fleeing from trial or other proceedings

  4. Whether the accusation is for injuring or humiliating the applicant

Therefore while considering an application for anticipatory bail the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, tampering with evidence, intimidating witnesses, likelihood of fleeing justice such as leaving the country, etc.

It is quite impossible to fix some inflexible guidelines or straitjacket formula for grant or refusal of the anticipatory bail, because all circumstances and situations of future cannot be clearly visualised. The court has wide discretion in exercising such powers. But the discretion under Section 438 CrPC should be exercised with extreme care, caution and prudence. The grant or refusal of anticipatory bail should necessarily depend on the specific facts and circumstances of each case.

Conditions a bail order must include

The anticipatory bail order may include some specific conditions stipulated in the statute. The conditions stated in Section 438 (2) of the CrPC are as follows:

  1. The accused person must make himself available for interrogation

  2. The person must not make any inducement, threat or promise to the person acquainted with the facts of the alleged case so as to dissuade him from disclosing the facts.

  3. The person shall not leave India without previous permission of the court

  4. And such other conditions which the court thinks it necessary

The conditions included in the section are only illustrative but not exhaustive. It is open to the court to impose any appropriate conditions if there are peculiar features in regard to any crime or offence such as seriousness or gravity etc.

Nothing in Section 438 CrPC, compels or obliges the courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The need to impose other restrictive conditions would have to be judged on a case by case basis, and depending upon the materials produced by the prosecution.

The courts have liberty to impose conditions spelt out in Section 437 (3), CrPC by virtue of Section 438 (2) in an application for anticipatory bail too. The need to impose other restrictive conditions should have to be judged on a case by case basis, and depending upon the materials produced by the prosecution. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.

Whether to grant or not is a matter of discretion of the court. Similarly, what kind of special conditions are to be imposed is also dependent on facts of the case in hand.

Not to impose over generous restraints

When an application for bail is denied or restricted it amounts to deprivation of personal liberty to that extent. Therefore the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438 CrPC, especially when no such restrictions have been imposed in the statute.

An over-generous inclusion of conditions which are not stipulated in Section 438 CrPC can make its provisions legally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

Anticipatory bail is a pre arrest order

Anticipatory bail is not a normal bail as its term denotes. It is an order directing that in the event of arrest of the person he shall be released on bail. The order will become operative only on arrest of the person. Ordinary bail is granted after the arrest. But the anticipatory bail is issued in anticipation of arrest.

The order of anticipatory bail is issued when there is apprehension of arrest. Registration of First Information Report (FIR) is not a necessity for applying for anticipatory bail. The court has wide discretion in granting bail with care and circumspection.

Persons accused of economic offences and atrocious crimes are not given anticipatory bail by the courts. The court issuing order should record reasons for doing so.

Anticipatory bail would be effective till the conclusion of trial unless the court issuing bail order stipulates some other time frame based on the circumstances of the case.

Person on anticipatory bail need not take regular bail

In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

Therefore, unless there exist circumstances to the contrary such as the accused trying to flee from justice, evading the authority of the court, intimidating witnesses, violating any condition imposed in the order of anticipatory bail etc, the law does not require the accused person to surrender to the court once again for bail upon receipt of summons for trial. The anticipatory bail given to a person can continue till end of the trial so long as he abides by its conditions.

Can discovery be made during bail period?

There has been an argument that in the case of a likely discovery under Section 27 of the Indian Evidence Act, the person released on anticipatory bail shall be liable to be taken in police custody for facilitating the discovery of facts relating to material objects or documents.

The court now points out that the limited custody or deemed custody, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such, deemed custody.

The Supreme Court again clarifies that in such event, there is no necessity of asking the accused to separately surrender and seek regular bail.

Higher court can set aside the bail

The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider some material facts or crucial circumstances.

Anticipatory bail should not be a blanket order

An order of anticipatory bail should not be a blanket order that operates in respect of future commission of every offence.

An order of anticipatory bail should not in any manner limit or restricts the rights or duties of the police or investigating agency, to investigate into the charges against the person who is granted pre-­arrest bail.

Anticipatory bail can be cancelled

The life of an anticipatory bail continues till the end of the trial. However, 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.

It is a well settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.

It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non­ cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

Additional reading

  1. Gurbaksh Singh Sibbia etc v State Of Punjab (1980 AIR 1632, decided by the five member bench of the Supreme Court, available at https://indiankanoon.org/doc/1308768/

  2. Sushila Aggarwal & others v State of NCT of Delhi & another, decided by the five member bench of the Supreme Court on 29th January 2020, available at https://indiankanoon.org/doc/123660783/