Sec.

438

Introduction
The term anticipatory bail is really a misnomer

because there can be no question of bail unless a person is under detention or custody.

object
Sometimes influential persons try to implicate rivals in

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.

When/ what offence/ which court/purpose

When---Where any person has reason to believe that

he may be arrested on an accusation of having committed an offence Which offence----a non-bailable offence(only) To Which court-- Court of Session or High Court For what purpose--- For a direction in the event of arrest , he shall be released on bail.

Factors - The following factors the court has to taken into

consideration while granting Anticipatory Bail a) The nature and gravity of the accusation b) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction c) The possibility of the applicant to flee from justice d) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested

Order- After observing the above factors

Court either reject the application or issue an interim order for the grant of anticipatory bail.

Where the court reject the application- It shall be open to an officer in charge of police station

to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

Notice to PP
( I A)Where the court grants (exparte )interim order , it shall send a notice being not less than 7 days notice on PP and SP , with view to give the PP a reasonable opportunity of being heard when the application shall be finally heard by the court.

Presence of applicant- ( I-B) The presence of the applicant seeking

anticipatory shall be obligatory at the time of final hearing of the application and passing of final order , if on an application made to it by PP, the court considers such presence necessary in the interest of justice.

Directions by Court
While granting anticipatory bail the Court may give

the following directions a) The person shall make himself available for interrogation by a police officer as and when required. b) He shall not make any inducement , threat or promise to any person acquainted with the facts of the case. c) He shall not leave India without permission of the court . Etc.

Analysis of Anticipatory Bail - In respect of Anticipatory Bail Supreme Court, High

Court made several decisions . Those conclusions are a) Though sec.438 gives concurrent powers to H.C and Court of Session , it is normally to be presumed that the court of session would be first approached. it has also been held that it is not always necessary that the sessions judge should be approached first. If he first approached sessions court and it was rejected, he can approach H.C.

Analysis-But if he first approached H.C, if rejected can not approach Court of Session.
b) Though it applies to only non-bailable offences, it is not necessary it must be cognizable offence. c) This section is of an extraordinary character and must be exercised in exceptional cases only.

Analysis- d) Discretion under this section is not to be exercised

with regard to offences punishable with death or imprisonment for life unless the court is satisfied that a charge appears to be false or groundless.
e) The larger interest of public and state demand that

in serious cases like economic offences involving corruption, dowry death cases, discretion under sec.438 should not be exercised.

Analysis-g) Status of life, Affluence or otherwise would hardly be relevant considerations. h) No Blanket Order ---- A blanket order is an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity , in fact any eventuality likely or unlikely regarding which , no concrete information can possibly be had. Such a blanket order of anticipatory bail should not generally be granted.

Blanket order cont.

Since the section requires the applicant to show that

he has reason to believe that he may be arrested, such belief must be formed only if there is something tangible to go by on the basis of which it can be assumed that applicant s apprehension genuine. A blanket order is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because , regardless of what kind of offence is alleged to have been committed by the applicant .

Blanket order cont.

Therefore the court which grants anticipatory bail

must take care to specify the offence or offences in respect of which alone the order will be effective.

Judicial Voice

Ravish Kumar v State of H.P

2002 Cr.L.J (1760) H.P

Allegation that petitioner accused killed deceased . Dead body found lying in unused septic tank in school. Petitioner accused last seen with deceased. He absconded even after knowing about discovery of dead body of deceased circumstances indicating grave suspicion of involvement of accused petitioner with death of deceased. Custodial interrogation in necessary for investigation. Anticipatory bail cannot be granted.

Chandraswami v CBI AIR 1998 SC 2670

Bail was granted to the

petitioner on the condition that he was not to leave the country. This order was subsequently modified to enable him to go abroad after seeking permission of court. He applied for permission stating his reasons to be propagation of Hindu religion and medical treatment. S.C held that the reasons were not of convincing nature, permission refused.

Srichand P Hinduja v State 2002 CrLJ 1942 SC

Out of three Bofors

accused (Hinduja brothers) who were released on bail , two were permitted to go abroad subject to certain conditions.

Dayanand G Narvekar v State 2001(2)

GLT 329
Irrespective of political,

financial or social status of a suspected person anticipatory bail is required to be considered mainly on the basis of seriousness of accusations and possibility of applicant absconding or impeding investigations. The fact that accused not cooperating or given evasive replies is not ground itself for custodial interrogation . Bail granted.(Rs.50,000 surety)

Amarnath Vyas v State of AP 2007 CrLJ 2025

The expression imprisonment for a term which may

extend up to 3 years as used in Sec,63 of Copy right Act would not come within the expression imprisonment for 3 years and upwards as given in Part II of Schedule I of Cr.P.C. Therefore the offence punishable under section 63 of the Act (Copy Right Act) cannot be considered as non-bailable one. Dismissal of application for anticipatory bail proper.

Pramod Kumar Mehata v State of Chattisgarh -- 2007 Cr.L.J 2063(Chh)

During Anticipatory Bail time (in case anticipatory

bail fixed for 45 days) party can apply for regular bail. During that period bail application can be heard on merits. In case if it is adjourned and anticipatory bail period is over, then regular bail can be accepted only after accused arrested.(i.e during custody)

Sajjan Kumar v State 1991 Cr.L.J 645 del

The petitioner accused an ex MP

who was alleged to be involved in murder of husband of complainant , occurred in riots at the time of assassination of late Prime Minister , Smt . Indira Gandhi but no complaint or FIR was filed immediately. Six years had elapsed and there was no complaint that the accused had interfered in ivnestigation. The Anticipatory bail granted was confirmed.

State of Gujarat v Narendra.K. Amin

AIR 2007SC2876
Fake encounter case
The validity of grant of

anticipatory bail by the sessions court to the Deputy superintendent of police ,Dr.Amin in Saharabuddin Sheiks murder and disappearance of Sheikhs wife case was directly challenged before the Supreme Court.

Amin case cont.

Fake encounter case

Supreme court held that Sessions Court in granting anticipatory bail had grossly ignored the need for custodial interrogation of the respondent for finding out as to what exactly happened to Kausarbi , the wife of deceased. The court therefore set aside the bail.

Anticipatory Bail plea rejected Deshprabhu held in illegal mining case.

August 5th 2011Novhind

times at page 1 The Sessions Court rejected the anticipatory bail in illegal mining case and also refused to grant him time to approach the High Court in appeal. Mr.Deshprabhu was then promptly arrested by the crime branch personnel.