CRIMINAL LAW-II

FINAL DRAFT

Project Topic:
LAW RELATING TO ANTICIPATORY BAIL

Submitted by
Kartikay Trivedi
Roll No. - 1532
4th Semester, 2nd Year, B.A.LL.B. (Hons.)

Submitted to
Fr. Peter Ladis
Faculty of Criminal Law-II

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
April, 2018.
 Law Relating To Anticipatory Bail

ACKNOWLEDGEMENT

I am thankful to my Faculty of Criminal Law-II, Fr. Peter Ladis, Professor of Law,

CNLU, Patna, who allotted me this research topic and guided me with his ideas, that how
to pursue this research topic.

I would also like to express my gratitude to the University Library, from where I had
managed to get the relevant books and web materials, which helped me in the completion
of this research topic.

At the end, I would like to thank my parents and few friends, who rendered their valuable
support for the completion of this research topic.

Kartikay Trivedi
Roll No. 1532
4th Semester
2nd Year, B.A.LL.B. (Hons.)

II
 Law Relating To Anticipatory Bail

DECLARATION

I hereby declare that the work reported in the B.A.LL.B(Hons.) project report entitled “Law
Relating To Anticipatory Bail” submitted at Chanakya National law University is an
authentic record of my work carried out under the supervision of faculty of Criminal Law-II,
Fr. Peter Ladis. I have not submitted this work elsewhere for any degree. I am fully
responsible for the contents of my project report.

Kartikay Trivedi

Roll no.: 1532

2nd Year, 4th Semester

B.A.LL.B.(Hons.)

III
 Law Relating To Anticipatory Bail

TABLE OF CONTENT

ACKNOWLEDGEMENT ................................................................................................................ II

DECLARATION .......................................................................................................................... III

TABLE OF CONTENT .................................................................................................................IV

INTRODUCTION ..................................................................................................................... 1

CHAPTER-1 BAIL AND ANTICIPATORY BAIL: MEANING ................................................ 4

CHAPTER-2 PROCEDURE OF APPLYING FOR ANTICIPATORY BAIL ............................. 9

CHAPTER-3 ORDINARY BAILV/S ANTICIPATORY BAIL.................................................. 15

CHAPTER-4 CANCELLATION OF ANTICIPATORY BAIL ............................................... 166

CHAPTER-5 CONCLUSION AND SUGGESTIONS ............................................................. 188

BIBLIOGRAPHY .................................................................................................................... 20

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 Law Relating To Anticipatory Bail

INTRODUCTION

The law lexicon defines bail as the security for the appearance of the accused person on
which he is released pending trial or investigation1. Bail is granted during the pendency of
the trial or an appeal. Before bail is granted to the accused, a surety gives a guarantee to the
Court that the accused will appear in the Court as and when required. A sum of money is to
be deposited to ensure his appearance before the Court, which otherwise stands forfeit. An
application for bail aims to "procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself
to the jurisdiction and judgment of the court."2

Under the Criminal Procedure Code, 1973 (Cr.P.C.), there is no definition of “bail”, but the
terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as:
"Bailable offence means an offence which is shown as bailable in the First Schedule or which
is made bailable by any other law for the time being enforce, and non-bailable offence means
any other offence". Bail is a right that can be availed by accused of bailable offences, but for
persons accused of non-bailable offences, they have to APPLY to a competent authority to
procure bail on merit. Sections 436 to 450 of the Cr.P.C. set out the provisions for the grant
of bail and bonds in criminal cases. The amount of security that is to be paid by the accused
to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the
court to put a monetary cap on the bond. Under the Indian legal system, there exists a
presumption of innocence until guilt is proven beyond reasonable doubt. A bail hearing is not
a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore
granting of bail is the norm except in cases where specific grounds are made out based on
which the bail can be refused. If there are reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life then the person shall not
be granted bail.

The Code of Criminal Procedure in 1898 did not have a provision for providing anticipatory
bail which is bail in anticipation of arrest. In the 41st Report of the Law Commission the idea
of Anticipatory Bail was introduced. Both the High Court and the Sessions court can grant an

1
RAMANTH IYER, Law Lexicon, (3rd ed,2012)
2
Black's Law Dictionary, 177 (4th ed.)

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 Law Relating To Anticipatory Bail

anticipatory bail.3 The need for granting this kind of a bail was observed because many times
people who have influence in the society often lodge false complaints against their rivals so
that they are seen negatively in the eyes of the society for being in jail for some time.4 The
idea of being in jail is already seen as a stigma in the society and hence will serve the
malicious purpose well. Another reason for granting this bail is, if an accused has very slight
chance of escaping the country or misuse the freedom he/she has then it is useless for him/her
to stay in the jail custody for some time and then further apply for bail.5 The Joint Select
Committee of the Parliament also thought this bail was necessary so that the freedom of an
individual is not unnecessarily curtailed. The direction for this kind of a bail has been laid
down in Section 438 of Code of Criminal Procedure of 1973. 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.6 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 unless a person is arrested and,
therefore, it is only upon arrest that an order granting ‘anticipatory bail’ becomes
operational.7 The expression of anticipatory bail is a convenient mode of conveying that it is
possible to apply for bail in anticipation of arrest. The legislative history of the provision
reveals that the Joint Select Committee of Parliament had initiated a thought that bail should
be made available in anticipation of arrest so that liberty of an individual may not be
unnecessarily jeopardized. The matter was referred to the Law Commission for consideration
about the inclusion of the remedy of grant of anticipatory bail in the Code of Criminal
Procedure, 1973. The Law Commission was enthused to take up the suggestion. It formulated
a draft provision to provide that bail in anticipation of an arrest which ultimately got enacted
as section 438 of the Code.

Objectives of the study

The researcher is going to research the above topic with some of the objectives which is sited
below:

3
Law Commission of India, 41st Report on the Code of Criminal Procedure Vol.I P.311(1969)
4
Dr.Prem Nath, Right to Anticipatory Bail, Legal Services India,
(02/04/2016;6:00p.m.),http://www.legalservicesindia.com/article/article/right-to-anticipatory-bail-230-1.html
5
Ibid
6
Supra Note 3
7
Balakchand Jain Vs. State of M. P. 1976 4 SCC 572

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 Law Relating To Anticipatory Bail

a) To understand the need of Anticipatory Bail.

b) To know the nature, structure and characteristic of Anticipatory Bail..

Hypotheses

The Researcher has certain hypotheses regarding the research topic which are:

a) Anticipatory bail is taken before the arrest is made.

b) Anticipatory bail is a kind of weapon in the hands of the accused against wrongful
allegations.

Research methodology

The researcher will be using doctrinal mode of research.

Sources of data

Primary Source: The Indian Penal Code, 1860, The Code of Criminal Procedure, 1973 and
various case laws.

Secondary Source: Textbooks, Websites, newspapers, reports, journals and articles.

Method of writing

The method of writing followed in the course of this research project is primarily
analytical.

Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this
project.

LIMITATIONS OF THE STUDY

Due to the broad area and extensiveness of the doctrinal research, the researcher has to be
dependent only upon the limited area of her doctrinal research.

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 Law Relating To Anticipatory Bail

CHAPTER-1
BAIL AND ANTICIPATORY BAIL: MEANING

Anticipatory bail is a direction to release a person on bail, issued even before the person is
arrested. Earlier section 438 read as:

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

(1) When any person has reason to believe that he may be arrested on an accusation of
having committed a nonbailable offence, he may apply to the High Court or the Court of
Session for a direction under this Section; and that Court may, if it thinks fit, direct that in
the event of

such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes adirection 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 think 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 subsection (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 subsection (1).

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 Law Relating To Anticipatory Bail

Since its conception, the concept of Anticipatory Bail has been under judicial scrutiny. The
landmark judgement on the subject is Gurubaksh Singh Sibbia v. State of Punjab8. The
Supreme Court, reversed the Full Bench decision of the Punjab and Haryana High Court in
this case, which had given a restricted interpretation of the scope of Section 438, held that in
the context of Article 21 of the Constitution, any statutory provision (Section 438) concerned
with personal liberty could not be whittled down by reading restrictions and limitations into
it. The SC sought to remove unnecessary restrictions when it came to bail provided under
section 438. The Court also held that the conditions subject to which the bail can be granted
under section 437(1) should not be read into Section 438. Section 438 (1) of the Code lays
down a condition, which has to be satisfied before anticipatory bail can be granted.

The applicant must show that he has “reason to believe’ that he may be arrested for a non-
bailable offence. The use of the expression “reason to believe” shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds. Thirdly, the filing of a
First Information Report is not a condition precedent to the exercise of the power under S.
438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist
even if an FIR is not yet file. Fourthly, anticipatory bail can be granted even after in FIR is
filed, so long as the applicant has not been arrested. After arrest, the accused must seek his
remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect
of the offence or offenses for which he is arrested9.The Section had been considered faulty by
a number of Law commissions and there were on-going discussions on its amendment, finally
it was amended in 2005 by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25
of 2005) tot the effect that10:

(i) the power to grant anticipatory bail should be exercised by the Court of Session or the
High Court only after taking into consideration certain factors;

(ii) upon consideration of these factors, the Court will either reject the application or issue an
interim order for the grant of anticipatory bail in the first instance;

8
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
9
Ibid, pg. 589-590
10
LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure, 1973
As Amended By The Code Of Criminal Procedure (Amendment)
Act, 2005 (Anticipatory Bail), (Law Comm. Report 203, Dec 2007)

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 Law Relating To Anticipatory Bail

(iii) where the Court has rejected the application or has not passed any interim order, it will
be open to the officer-in-charge of a Police Station to arrest the applicant, without warrant, on
the basis of the accusation apprehended in the application for the grant of anticipatory bail;

(iv) where the Court makes an interim order for the grant of interim bail, it will forthwith give
a notice being not less than seven days’ notice to the Public Prosecutor and the
Superintendent of the Police with a view to give them an opportunity of being heard when the
application is finally heard;

(v) the presence of the applicant seeking anticipatory bail will be obligatory at the time of
final hearing of the application if the Court considers such presence necessary in the interest
of justice on an application made by the Public Prosecutor for such presence.

Again, in the case of Gurubaksh Singh Sibbia v. State of Punjab11 it was said that the High
Court and the Court of Session must apply their mind with care and circumspection and
determine whether the case for anticipatory bail is made out or not. No blanket order of
anticipatory bail can be passed by any Court.

It can be said that the amended Section merely seeks to formalize certain aspects that are
otherwise being followed in practice without having been formally included in the Section. It
needs to be borne in mind that legislation is a sphere which is seldom perfectly complete.
There may be conditions and practices which escape formal translation into statutory laws but
yet, they continue to influence the conduct of the organs of the State and their subjects. Such
conditions and/or practices may have been initiated in the first instance in individual cases
based on sound reasons, logic and rationale. Even though the amended section 438 expounds
upon the provisions required to be considered while granting anticipatory bail, the Supreme
Court has given guidelines for the same in the year 2009.

In the case of Savitri Agarwal and Others v. State of Maharashtra and Another,12 a
Constitutional bench of the Supreme Court issued guidelines which the courts had to keep in
mind while they decided upon the granting of anticipatory bail. Though the power conferred
under Section 438 can be described to have extraordinary character, but this does not justify
the presumption that the power must be exercised in only exceptional cases. Nonetheless, the

11
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
12
Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373

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 Law Relating To Anticipatory Bail

discretion under the Section has to be exercised with due care and careful understanding of
the case and examine it on its merits.

Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must
be satisfied that the applicant invoking the provision has reason to believe that he is likely to
be arrested for a non-bailable offence and that belief must be founded on reasonable
grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to
show that he has some sort of vague apprehension that an accusation may be made against
him/her that might lead to arrest. The court should be able to objectively examine the grounds
on which the reasonable fear is based. Specific events and facts must be disclosed by the
applicant in order to enable the Court to judge of the reasonableness of his belief, the
existence of which is the sine qua non of the exercise of power conferred by the Section.

The observations made in Balchand Jain v. State of Madhya Pradesh,13 regarding the nature
of the power conferred by Section 438 and regarding the question whether the conditions
mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on
the point. There is no warrant for reading into Section 438, the conditions subject to which
bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot
be refused in respect of offences like criminal breach of trust for the mere reason that the
punishment provided for is imprisonment for life. Circumstances may broadly justify the
grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in
any case if there is material before it justifying such refusal.

No blanket order of bail should be passed and the Court which grants anticipatory bail must
take care to specify the offence or the offences in respect of which alone the order will be
effective. While granting relief under Section 438(1) of the Code, appropriate conditions can
be imposed under Section 438(2) to ensure uninterrupted investigation. One such condition
can even be that in the event of the police making out a case of a likely discovery under
Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in
police custody for facilitating the recovery.14 Otherwise, such an order can become a charter
of lawlessness and a weapon to stifle prompt investigation into offences which could not
possibly be predicated when the order was passed.

13
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366
14
Hemanta Kumar Nayak v State of Orissa. (2000 Cr.L.J. 3267 (Ori))

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 Law Relating To Anticipatory Bail

1.1 Structuring of the Section 438 of CRPC

On what grounds and conditions a person will apply for anticipatory bail has been laid down
in the first part of the Section. The second part of the Section deals with the jurisdiction of the
Courts. The Section gives power to both the High Court and the Sessions Court to grant
Anticipatory bail to a person. Sub-section (1) of Section 438 was amended in 2005 and the
new sub-section (1) has been divided into sub-section (1), (1A) and (1B).15 On what
conditions the bail is to be granted has been well elaborated in the sub-section (1) of the Act.
The Court must immediately give a notice to the Public Prosecutor and the Superintendent of
the Police if the bail application has not been rejected by the court and had passed an interim
order for the Bail. The person being given the bail should be present in the court during the
granting of the anticipatory bail. Unless the person is in such a condition that he/she being
present in the court is not possible, this ground will not be compromised with. The Section
says that the Court might also refuse the Anticipatory Bail after considering the nature and
intensity of the crime, the previous criminal record of the accused and the possibility of the
accused to escape from the country or abscond or misuse the liberty given to him/her in any
way. 16The nature of the crime is given a lot of importance. If the Court feels that the accused
would not do anything to hamper the smooth functioning of the investigation and not create
any hindrance to the investigation process then he/she can be granted bail.17 Also if the
behaviour of the accused is such that it gives a benefit of doubt and there has been no signs of
filing of false case or any intention f any third person to defame the accused and the
investigation of the case is yet to be completed, then it is not reasonable to grant an
anticipatory bail to the accused.18 It was held in a number of cases that the granting of
Anticipatory bail is a not to be misused by granting it in casual cases. It should be granted in
exceptional cases. The conditions for granting an Anticipatory bail is different from granting
a bail in general and the exercise of the discretion for granting Anticipatory bail should also
be different.19

15
CRPC Amendment Act 2005 (25 of 2005)
16
Lilarani Revani v R.D. Gandhi (1998 Cr.L.J. 14 (15) (Guj))
17
K. Narayana Shivam v State of Andhra Pradesh (1980 Cr.L.J. 588 (A.P.))
18
Kasturchand Ramlal v State of Maharashtra (1981 Cr.L.J. 1328 (Bom.))
19
Md. Abdul Sattar v State of Assam (1986 (1) Crimes 263) and Adni Dharan v State of West Bengal (2005 SC
1760)

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 Law Relating To Anticipatory Bail

CHAPTER-2
PROCEDURE OF APPLYNG FOR ANTICIPATORY BAIL

4.1 Nature of an Anticipatory Bail

The Human Rights movement has claimed that no person should be kept in custody until and
unless he/she has been proven guilty of an offence. This became a huge challenge to both the
legislators and the executives as a result the idea of anticipatory bail came into existence.
Section 438 was introduced for the same purpose. The idea is when a person has a reasonable
ground to apprehend his arrest for a non bailable offence and he needs to prevent it, he can
approach the appropriate court which will then grant him an anticipatory bail. The statute
does not say under what particular condition the anticipatory bail would be granted. This is
because the idea was to give this responsibility to the courts so that they could use their
discretion to decide whether to grant the bail or not. To avoid misuse of this advantage the
Law Commission made the initial order an interim order and the final order would be given
only after the public prosecutor had given a notice.20 Anticipatory bail is a way of settling
arrangements related to custody between the accused on one side and the court and police on
another side and still ensures that the accused is available when he/she is required to carry out
any formalities required for justice to be served.In the case of State of M.P. v R.K. Balothia21,
the Supreme Court held that Anticipatory bail is only a statutory right and not an element of
Article 21 of the Constitution. This can be rightly said as it came into effect much later
compared to the making of the Constitution.

4.2 Characteristics of Anticipatory Bail

The Supreme Court in 2003 held that Anticipatory Bail is not granted merely because of the
individual’s right. In cases like murder and dowry-death where the punishment is capital
punishment or imprisonment for life then the granting of Anticipatory bail is not possible
until and unless the situation clearly demands for the same.22 Section 438 of the Code can be
invoked only when the accused has an apprehension that there is an arrest that is to take
place. But if the accused has already been arrested and has been put behind the bars for

20
48th Law Commission Report
21
AIR 1995 SC 1198
22
Manoj Agarwal v State of Chhattisgarh (2003 Cr.L.J. 3519)

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 Law Relating To Anticipatory Bail

committing a cognizable offence then he/she cannot ask for Anticipatory bail because there is
no question of protection of the accused from any dishonour or defamation.23 The person who
has an apprehension that he/she maybe arrested for a non-bailable offence can make can
application which will necessarily indicate that the person is apprehending an arrest and
therefore is asking the Court of Law for granting an Anticipatory bail.24 The accused should
sincerely feel threatened by an apprehension of arrest and this arrest should arise out of a
non-bailable offence. The arrest should be imminent. This is a very important condition for
granting of an Anticipatory bail.25 Another important condition that comes before the
Anticipatory bail is granted is that the threat of arrest should be based on an accusation which
is non-bailable. The threat of arrest must be out of nothing but based on believable and
reasonable facts. The applicant for the bail cannot say that there is a chance of a complaint of
non-bailable offence being filed against him in the future or he/she feels that there has been
an accusation against him/her. If the case is that the accusation is to happen in the future then
there cannot be an existing threat of arrest and the arrest is in no way imminent. This is a
condition which comes before Section 438 can be revoked by any person.26 The applicant
must specify the accusation that has been alleged against him/her in the bail application. Then
there should be an appeal for release in case there is an arrest with respect to that particular
accusation. So basically the Section 438 is invoked only in case of a particular accusation and
not against an uncertain accusation filed in general. Section 438 does not provide a blanket
protection because in that case any person would approach the court of law and ask for a bail
with respect to any allegation or case and this is problematic because then anybody could
commit any kind of offence and will have the protection against arrest. The filing of an FIR is
not compulsory. The Court is supposed to see that there is an accusation and the applicant has
a chance to get arrested as a result of that accusation.27 And Section 438 is not just applicable
in case of an arrest made by the Police but this extends to any person who has the authority
given by any statute to carry out an arrest.28 The Supreme Court in the case of Jaswantbhai
M. Sheth v Anand V. Nagarsheth29 held that the Anticipatory bail order can be given at the
discretion of the High Court. If the High Court believes that the applicant has a reasonable
threat of arrest for committing a nonbailable offence.

23
Narinderjit Singh Sahni v Union of India (AIR 2001 SC 3810)
24
Bimaladak v State. (1997 Cr.L.J. 1969)
25
Sachindra Mahawar v State of M.P. (2000 Cr.L.J. 637)
26
Thyyanbadi Meethal Kunhiraman v S.I. of Police (1985 Mad L.J. (Cri.) 263)
27
Ibid
28
Suresh Vasudeva v State (1978 Cr.L.J. 677)
29
(2000) 10 SCC 7

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 Law Relating To Anticipatory Bail

4.3 Aim of Anticipatory Bail

The main aim is not let a person suffer because of dishonour or disrespect. The main element
of this provision is that when a person reasonably believes that he might be arrested for a
non-bailable offence, he can then apply to the High Court or the Sessions Court asking for
Anticipatory bail. A person cannot be refused an Anticipatory bail just because his/her name
was mentioned in a FIR or a complaint of any sort.30 But if the person from his conduct
shows that if allowed to walk free then he might repeat the offence again then an Anticipatory
bail cannot be granted to the person.31 The aim of the provision has been clearly shown in the
case of Ashok Kumar v State of Rajasthan32 where a wife was killed and an allegation of
dowry-death was filed against the father-in-law, the husband, the mother-in-law and the
sister-in-law who is a student and of a very young age. The allegation was that all the four
alleged accused have mentally tortured the girl to commit suicide. The High Court of
Rajasthan granted an Anticipatory bail to the sister-in-law keeping in mind the age of the girl,
the nature of the crime and the clear chance of merely maligning the girl and rejected the
application for Anticipatory bail of the other three accused. Here the Court clearly mentioned
that unless and until the chances of the dishonouring and defaming the accused is clear in the
allegation, no Anticipatory bail can be granted under Section 438 of the Code. The objective
is to give an individual the respite from dishonour and shame and secure him from going to
prison.33 Hence the granting of bail is only applicable only when there is an arrest. So the
idea of Anticipatory bail comes after arrest only and once the person has got an Anticipatory
bail from the Court right after the arrest then he/she will not have to stay in rigorous custody
and then apply for a bail.34 The conditions which have been laid down in Section 437 are all
applicable in Section 438 with respect to non-bailable offences. To fulfil the conditions of
both the sections, that is Section 437 and 438 of the Code, the accused must frame that the
charges alleged against him are false and are aimed at dishonouring or defaming him.35

4.4 Nature of Cases Where Anticipatory Bail can be Granted

30
Puran Chand Gupta v State of Punjab (1980 Punj. L.R. 694)
31
Harji v State of Rajasthan (1983 Cr.L.J. 1938)
32
1980 Cr.L.R. (Raj.) 581
33
Natturasu v State(1998 Cr.L.J. 1762 (Mad.))
34
Balchand Jain v State of M.P. ((1976) 4 SCC 572)
35
Mathangonda v State of Karnataka (1978 Cr.L.J. 1045 (Kant.))

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 Law Relating To Anticipatory Bail

The Supreme Court in Balchand Jain v State of M.P. held that the features of Section 438 is
of extraordinary nature and can be invoked only in extraordinary situations and cases. Further
the power by the Court to grant Anticipatory bail should be granted in exceptional cases
only.36 A Constitutional bench of the Supreme Court although accepted this holding based on
the reasoning that Anticipatory bail is not granted in ordinary circumstances under Section
437 and 439 of the Code where a court may accept or refuse to grant a bail to a person in the
jail custody. This is the ordinary way of bail application. But this is not the case of an
Anticipatory bail and can be applied in non-ordinary cases only. But the Supreme Court
further held that even if not invoked in ordinary cases, it is not necessary for the Court to
exercise their power to grant Anticipatory bail in exceptional cases only. The granting of the
bail is based on circumstances and not exceptionality and hence the courts must exercise the
power with care and caution and also justify their reasoning for granting Anticipatory bail.
The Supreme Court also held that if the powers of the Court in granting Anticipatory bail is
subjected to limitations and guidelines, then the object and aim of the legislature with regards
to this section will fail.37 The Court further said that the previous case there was a question of
security of the country and the concern of the case was related to interpreting Rule 184 of
Defence and Internal Security of India Rule, 1971. It was anyway a question whether Section
348 was applicable in a situation this critical and involved the security of the nation. Hence,
we cannot say that the judgment of this case should be considered in all cases related to the
invoking of Section 438 of the Code. In conclusion the Constitutional Bench held that even
though the feature of Section 438 is extraordinary yet but it is not necessary to invoke this
section only in exceptional cases.38 In cases of Naresh Kumar Yadav v Ravindra Kumar39 ,
Adri Dharam Das v State of West Bengal40 and D.K. Ganesh v P.T. Manokaran41 the
Supreme Court restated the holding of Balchand Jain case. They said the features of Section
438 of the Code is extraordinary and only if a person has been accused falsely or if the Court
has reasonable ground to believe that the accused will not abscond can Anticipatory bail be
granted. The Adri Dharam Das case was the first among the others to restate the Balchand
Jain case which was overruled by a 5 judge bench of the Supreme Court. It is strange that a 2
judge bench of the Supreme Court in the Adri Dharam Das case held a contradicting
judgment to the 5 judge bench of Supreme Court in the Gurbaksh Singh Sibbia case. Hence
36
(1976) 4 SCC 572
37
Gurbaksh Singh Sibbia v State of Punjab(AIR 1980 2 SCC 565)
38
Ibid
39
AIR 2008 1 SCC 632
40
2005 SC 1760
41
AIR 2007 SC 1450

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 Law Relating To Anticipatory Bail

the holding of the Adri Dharam Das case becomes an incorrect law. The judgment becomes
per incuriam to the existing law. All cases in contradiction to Gurbaksh Singh Sibbia case and
upholding the Balchand Jain case have been considered to be per incuriam to the existing law
or the incorrect law. Applicability of Section 438 of the Code will not be in generality but
more in rarity.42 The invoking of Section 438 of the Code should be based on the facts that
each case displays and it should not interrupt the process of investigation in any way and
should rather focus on whether the accusation had a malicious intention of defamation and
harassment.43 It is also evidently important for the accused to clearly show the Court that the
allegations are false and were filed just to defame the accused or with other malign motives.44
Further the Court must make sure that the non-granting of the Anticipatory bail should not
cause any injustice to the accused. The Court must inquire into the matter and take help of
police if needed so that they can ensure whether or not to grant Anticipatory bail to the
applicant.45

4.5 What All Considerations to Keep in Mind While Granting Anticipatory

Bail

Section 438 of the Code was amended in the year 2005 and it came to effect in 2006. After
the amendment the Sub-section (1) of 438 listed the considerations that need to be kept in
mind while granting Anticipatory bail. Firstly, the nature and intensity of the crime with
which the accused has been charged. Secondly, if the accused has been earlier been arrested
or was convicted for a cognizable offence by the Court of law. Thirdly, if the accused is
likely to abscond if not arrested or create disturbance in the smooth investigation process.
Fourthly, whether the accusation was made with mala fide intention and only to defame the
applicant or if the accused is actually liable of commission of such alleged offence and the
accusation was to achieve justice.46 Some overriding considerations that the Court must keep
in mind while granting Anticipatory bail has also been laid down in certain cases. Firstly, the
relationship of the accused and the victim and the accused and the witness needs to be
considered. Secondly, whether the accused is likely to commit the same offence again or

42
Narinderjit Singh Sahni v Union of India (AIR 2001 SC 3810)
43
V. Nandanan v DIG of Police Hyderabad (1986 Cr.L.J. 1052)
44
Manoj Agarwal v State of Chhattisgarh (2003 Cr.L.J. 3519)
45
Ibid
46
Gurbaksh Singh Sibbia v State of Punjab (AIR 1980 2 SCC 565)

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some other offence to harm the victim and the witnesses must be kept in mind. Thirdly, the
history of the case and that of the investigation.47

4.6 Time Limit and Interim Order of Anticipatory Bail

From the reading of Section 438 of the Code we understand that it should not be limited by
time. And once it is granted, it will continue to have effect till the trial ends and can only be
cancelled on invoking Section 439. But the Supreme Court has held that it is important to
have a limited time period for granting of Anticipatory bail. And when the time has expired
or if the time gets extended, then the Court that is granting the bail has to give the
responsibility of dealing with Anticipatory bail to a regular Court which will consider the
evidences after investigating the matter or submission of the charge-sheet.48 High Court has
been given the power to pass an interim bail in certain cases under Section 482 of the Code.49
An interim Anticipatory bail can be granted for a short period of time in cases where the
jurisdiction is in question. And in cases where the Anticipatory bail application is pending
before a court of law, the Court can grant an interim Anticipatory bail and then the applicant
can file for an ordinary bail order before the Court of Sessions but only after getting
permission from the High Court.50

4.7 Public Prosecutor and Notice of Anticipatory Bail

In two cases the Court held that the notice of Anticipatory bail before granting it to the
applicant should be given to the Public Prosecutor. Although this has not been laid down in
Section 438 of the Code.51 But later in a judgment the Supreme Court held that Anticipatory
bail can be granted to an applicant even without a notice to the Public Prosecutor. But in case
of any dispute regarding the granting of Anticipatory bail, the notice of the bail must be given
to the Public Prosecutor and the Advocate of the Government and the grating of the bail
should be examined again. But if the Public Prosecutor has not been given the required scope
to oppose the Anticipatory bail application then even after granting the bail, it can be
quashed.52

47
M. Krishnappa v State of Karnataka (1992 Cr.L.J. 2648(Kant.))
48
Saluddin Abdul Samad Shaikh v State of Maharashtra. ( 1996 1 SCC 667 (668))
49
Anant Vasant Joshi v State of Maharashtra (1986 (1) Crimes 170 (Bom))
50
Ibid
51
Bhagirath Mahapatra v State of Orissa ( AIR 1975 Cr.L.J. 1681) and State of Maharashtra v Vishwas (AIR
1978 Cr.L.J. 1403)
52
State of Maharashtra v Hanumantrao (AIR 1980 Cr.L.R. 526)

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CHAPTER-3
ORDINARY BAIL V/S ANTICIPATORY BAIL

An Anticipatory Bail is granted when a person is anticipating an arrest and it comes into
effect when as soon as arrest takes place. On the other hand an Ordinary bail is granted only
after the arrest has taken place and the arrested person is let off from the jail and police
custody.53 In case of an ordinary bail the accused cannot escape the jail imprisonment or the
custody of the police. But it is possible to avoid this and provide protection to an accused
from jail custody. Ordinary bail comes to effect after the arrest or post-arrest and the
Anticipatory bail comes to effect before arrest or pre-arrest, that is, if the person is arrested
consequent to the same accusation then he/she will be let go on Anticipatory bail. Unlike an
ordinary bail the Anticipatory bail, under Section 438 of the Code provides protection to the
applicant and a certain amount of immunity from imprisonment. This is not true for an
ordinary bail because it comes to effect after the person has been taken into the custody of the
police.54 From the reading of the Section 439 it is clear to us that this section can be invoked
only after the person has been admitted to jail. That is to say that an Ordinary bail is granted
after arrest only. But the reading of Section 438 dealing with Anticipatory bail, the person
will not be admitted to jail as the bail comes to effect on the threat of the arrest itself. 55 So we
can say that an Anticipatory bail is granted at the very time of arrest.56 In Ordinary bail the
release of the accused from the jail custody after Section 437 of the Code is invoked is an
essential part but in Anticipatory bail the release from jail custody is not needed as the bail is
effective as soon as arrest takes place.57 In case of an Anticipatory bail an application for
granting of bail can be made when the accused can establish a reasonable threat of arrest.
This threat of arrest can be enquired and examined if the application is filed before a charge-
sheet has been made. This is because after a charge-sheet has been filed the appearance of the
accused before the judiciary is guided by the Court and the Police by themselves do not take
any step to arrest the accused or keep him/her in custody.58 In the case of Pijush Kanti Dey v
State the court held that the idea of ordinary bail and Anticipatory Bail are not absolutely
detached and different from each other.

53
Gurbaksh Singh Sibbia v State of Punjab(AIR 1980 2 SCC 565)
54
Pokar Ram v State of Rajasthan (AIR 1985 SC 969)
55
Nirmal Jeet Kaur v State of M.P. (AIR 2004 7 SCC 558)
56
D.K. Ganesh Babu v P.T. Manokaram (AIR 2007 SC 1450)
57
Bimaladak v State (1997 Cr.L.J. 1969)
58
Hemanta Kumar Nayak v State of Orissa. (2000 Cr.L.J. 3267 (Ori))

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 Law Relating To Anticipatory Bail

CHAPTER-4
CANCELLATION OF ANTICIPATORY BAIL

Although Section 439 of the Court does not talk about cancelling of a bail because it is
assumed that the Court which has granted the Anticipatory bail will recall it or even cancel it
if the need arise for the same.59 The same is applicable for Anticipatory bail also. But being a
special provision it should in no way be misused. The power to cancel a bail is basically
derived from the overriding power given to the High Court and it can only be exercised if the
High Court believes it is essential in order to provide justice to the parties involved.60

Anticipatory Bail granted by the High Court can only be cancelled by it and not by the
Magistrate or the Session Judge.61 Normally, very cogent and overwhelming grounds or
circumstances are required to cancel the bail already granted.62

1. An order granting anticipatory bail under section 438 or bail under section 439 (1) is
amenable to appellate provisional scrutiny and may be cancelled if it was made in arbitrary or
improper (and not judicial) exercise of the discretionary power or was made without
application of mind or without consideration of all relevant circumstances or was based upon
irrelevant considerations or was vitiated by any basic error of law or was otherwise perverse.

2. An order granting bail may be cancelled in case new of supervening circumstances arise
after the release on bail such as abuse of the liberty by hampering the investigation or
tampering with witnesses or by committing same or similar offence but existence of any
supervening circumstance following the grant of anticipatory bail or bail is not he only
criterion for cancelation of such bail.63

3. Although the discretionary power to cancel bail is extraordinary and is to be exercised

sparingly, nevertheless, it is meant to be exercised in appropriate cases, however few those
cases might be.

59
State of Maharashtra v Vishwas, (AIR 1978 Cr.L.J. 1403)
60
Ratilal Bhanji v Assistant Collector of Customs (AIR 1967 SC 1639)
61
Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
62
Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
63
A. K. Murumu v. Prasenjit Choudury, 199 Cr.LJ 3460

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 Law Relating To Anticipatory Bail

4. Order granting anticipatory bail or bail must not tantamount to interference with efficient
exercise of statutory functions when dealing with economic offences such as those under the
fear.

5. Advantage of custodial interrogation should be taken into account in granting anticipatory

bail or bail.

6. Anticipatory bail may be cancelled under section 439(2) of Code of Criminal Procedure if
the accused is found to be tampering with prosecution evidence.64 Very cogent and
overwhelming circumstances are necessary for an order seeking cancelation of bail. 65 The
cancelation of anticipatory bail already granted can be ordered only when the accused has
interfered with the course of justice by tampering with the evidence or has misused or abused
his privilege.66

64
Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
65
Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
66
Vishwanath Tiwari v. State, 1988 Cr.L.J. 333 (Pat)

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 Law Relating To Anticipatory Bail

CHAPTER-5
CONCLUSIONS AND SUGGESTIONS

As mentioned previously, anticipatory bail is a provision in favour of the liberty and freedom
of people accused of crimes. While the courts have given detailed guidelines on application
of the provision, but the same is not applied strictly in practise.

Besides the above issue, the 203rd Law Commission Report too suggested certain
recommendations one of which being that an explanation should be inserted clarifying that a
final order on an application seeking direction under the section shall not be construed as an
interlocutory order for the purposes of the Code.

In State of Rajasthan v. Bal Chand67, Justice Krishna Iyer observed: “The basic rule may
perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of
fleeing from justice or thwarting the course of justice or creating other troubles in the shape
of repeating offences or intimidating witnesses and the like by the petitioner who seeks
enlargement on bail from Court.” The practical problem of anticipatory bail is that it is often
observed especially in the case of influential accused that despite conditions that prohibit any
intimidation and harassment of the victim the accused or his/her representatives attempt to do
the same.

Besides that, any power that is based on discretion will always have the suspicion of an
element of ambiguity and the chance of arbitrariness. The factors for consideration in dealing
with anticipatory bail applications as are now mentioned in the new Section are only
illustrative in nature and the same, along with other relevant factors are indeed being taken
into consideration while making final orders on such applications in spite of the fact that
these have not been expressly incorporated in the pre-amended Section. Just as in the case of
discretion when it comes to the choice between life imprisonment and the death penalty, the
decision emanating from such an exercise of discretionary power shall always be
circumspect.

The Idea of Anticipatory Bail Lacks the Elements of Bail Process

The idea of Anticipatory Bail has over time become very popular in the Criminal Justice
System and is considered as a way of protecting the liberty of an individual. But not everyone

67
State of Rajasthan v. Bal Chand, AIR 1977 SC 2447

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 Law Relating To Anticipatory Bail

has accepted this idea well. Introducing the Anticipatory bail in the Code creates a lot of
confusion in the entire system of granting bail and applying for bail. The elements of bail are
completely absent in the concept of Anticipatory bail. This is because in a normal bail the
custody of the person is either with the State or the community. Also the accused is initially
kept in the custody of the police and then released after a bail bond has been executed by a
third party surety. The custody of the person who is applying for Anticipatory bail is a reason
of confusion because he/she is neither in the State’s custody nor in any other custody. Also
the presence of the accused is not even required for granting of bail in case of Anticipatory
bail because even a threat of arrest can lead to granting of bail to the applicant.68 Anticipatory
bail can lead to the misuse of the justice system to a large extent and that will affect the
smooth functioning of the Justice System and the reason is that the Court is dealing with a
situation based on presumption and in a pre-mature stage where the matter has not even taken
a criminal nature. Also taking such a pre-matured matter to the court directly without giving
the investigating agency any scope of working on it will end up defeating the authority of an
investigating agency in the Criminal System. This will lead to a lot of interference of the
Court in the Police jurisdiction granted to them by statutes. This is basically intervention in
the power and authority of the police given by the law. Anticipatory bail is an anomaly of law
when we see it in terms of the existing concept of bail. It is beneficial only for the rich and
influential people but not so advantageous for others.69

In spite of the given reservations about the anticipatory bail, there exists another stream of
thought, according to which it can be safely observed that the anticipatory bail mechanism is
a necessity. Without it numerous persons may be made to suffer in custody just on account of
some suspicion or a false charge. The experience of courts in evolving useful precedents in
matters of anticipatory bail must not be undervalued.

68
1 R.L. Anand (ed) Aiyer & Mitter, Law of Bails
69
154th Report of Law Commission of India on Cr. P.C. (1996)

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BIBLIOGRAPHY

Legislations

 The Code of Criminal Procedure, 1973.

 The Indian Penal Code, 1860.
 The Constitution of India.

Government Reports

 154th Law Commission of India Report

 48th Law Commission of India Report
 41st Law Commission of India Report

Websites

 http://shodhganga.inflibnet.ac.in/bitstream
 www.legalblog.in/2011/12/anticipatory-bail-scope-ambit
 www.academia.edu

Books

 RAMANTH IYER, Law Lexicon, (3rd ed,2012)

 Black's Law Dictionary, 177 (4th ed.)
 R.V. KELKAR, Criminal Procedure,(5th ed. 2008)
 RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, (19th ed. 2013)
 LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure,
1973, As Amended By The Code Of Criminal Procedure (Amendment) Act, 2005
(Anticipatory Bail), (Law Comm. Report 203, Dec 2007)

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