Anticipatory Bails

In the 41st Report of the Law Commission the idea of Anticipatory Bail was introduced. 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.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.
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.

In the case of State of M.P. v R.K. Balothia, 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.
The Section 438 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 it came to effect in 2006, and the
new sub-section (1) has been divided into sub-section (1), (1A) and (1B).6 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 main aim is not let a person suffer because of dishonour or disrespect.
in the case of Ashok Kumar v State of Rajasthan13 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.

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 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. 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.

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. 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.

The Supreme Court in the case of Jaswantbhai M. Sheth v Anand V. Nagarsheth,  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.
The Court cannot send the application back to the Magistrate. If they do so it will be against
the aim and purpose of Section 438.

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. By considering
the language of Section 438 the Court held that the legislature had the intention to hold
Anticipatory bail along the same lines of an Ordinary bail and not hold them as two different
concepts.

In the Gurbaksh Singh Sibbia v State of Punjab, in the year 1980, the Supreme Court held
that the discretion of granting Anticipatory bail must be used more objectively and the higher
courts have the power to correct this discretion if the need arise. A dual protection has been
provided to this system so that there is no misuse if the discretion and the process.34 In the
case of Directorate of Enforcement v P.V. Prabhakar Rao the Supreme Court held that
Anticipatory bail can only be granted by a High Court or a Sessions Court only after they
have exercised their power of judicial discretion properly.

The court, be it for Ordinary bail under Section 437 and Section 439 of the Code or an
Anticipatory bail under Section 438, is required to exercise their discretionary power wisely
and not arbitrarily. The Court has the burden to make sure that the applicant’s liberty and the
investigation process of the Police are not clashing with one another and a proper balance is
maintained.

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.
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. 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.

Things to keep in mind while granting Application under section 438

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. 

Overriding Consideration 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 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.

A person who is already on bail cannot apply for Anticipatory bail again for the same
accusation. Once it is granted, it will continue to have effect till the trial ends and can only be
cancelled on invoking Section 439.f 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.
Indefinite Adjournment In Anticipatory Bail Matter Is Detrimental To Valuable Right
Of A Person: Supreme Court Rajesh Seth vs State of Chhattisgarh | SLP (Crl)
1247/2022
The Supreme Court observed that indefinite adjournment in a matter relating to anticipatory
bail, that too after admitting it, is detrimental to the valuable right of a person. 
When a person is before the Court and that too in a matter involving personal liberty, least
what is expected is for such a person to be given the resesult one way or the other, based on
the merit of his case and not push him to a position of uncertainty or be condemned without
being heard, when it matter"
When an application for anticipatory bail was listed before the learned Single Judge, which
was also accompanied by an application for ad-interim relielief, the learned Judge should
have decided the same one way or the other, so far as the ad-interim prayer or should have
taken up for consideration after giving some reasonable time to the State. Even if admitted,
the learned Judge should have listed the same for final disposal on a specific date, keeping in
view the nature of relief sought in the matter. Not giving any specific date ,  date, particularly
in a matter relating to anticipatory bail, is not a procedure which can be countenanced. We
are of the considered view that this ty pe of indefinite adjournment in a matter relating to
anticipatory bail, that too after admitting it, is detrimental to the valuable right of a person.

Prior Interim Protection No Ground To Grant Anticipatory Bail: Gujarat High Court

HIRENBHAI HITESHBHAI PATEL V. TATE OF GUJARAT

here, the Supreme Court's opinion in P Chidambaram vs Directorate of Enforcement [2019
(9) SCC 24] wherein it was observed, "ordinarily, arrest is a part of procedure of
investigation to secure not only the presence of the accused, but several other purposes.
Power under Section 438 is an extraordinary ower and same has to be exercised sparingly.
The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial
discretion confers upon the Court has to be properly exercised after application of mind as to
the nature and gravity of accusation; possibility of fleeing from justice and other factors to
decide whether it is a fit case for grant of anticipatory bail or not", the Bench refused to grant
anticipatory bail to the Applicant.
merely granting protection for long time would not be a ground to extend the benefit of
anticipatory bail to the accused, when the applicant is otherwise  disentitled for anticipatory
bail, the Gujarat High Court has held.

S.82 CrPC Does Not Impose Any Restrictions On Filing Of Anticipatory Bail By
Proclaimed Offenders: Punjab & Haryana High Court
If the offence committed is punishable with less than seven years, is a bailable, non-heinous
offence and the accused who is a first-time offender, has established a fairground for not
being present in court, to the court's satisfaction, then just the fact that accused has been a
proclaimed offender will not bar him/her from availing the benefit of Anticipatory Bail under
S. 438 CrPC.

Anticipatory Bail Plea Not Maintainable Once Accused Enters Appearance, Either Personally
Or Through Counsel: Karnataka High Court
The Karnataka High Court has said that once an accused has appeared before the court, either
personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of
the Criminal Procedure Code (CrPC). Justice H P Sandesh thus dismissed the anticipatory
bail petition filed by one Ramesh Ramesh and granted him liberty to approach the Trial Court
by filing

In Gurbaksh Singh Sibbia v State of Punjab, grave allegations of corruption were made
against the then Minister of Irrigation and power in the Government of Punjab. Sri Gurbaksh
Singh Sibbia filed an application before the Punjab and Haryana High Court praying for the
grant of anticipatory bail which was refused by the Court. The Court held that the power
under Section 438 is extraordinary and must be exercised sparingly in exceptional cases only.

It observed that the applicant must make out a special case for the grant of bail under this
Section. It further observed that in case of a reasonable demand made by the investigating
agency for remand of accused in police custody, power under Section 438 should not be
exercised. The court held that in order to balance public interest, the discretion should not be
exercised by the court in serious economic offences involving blatant corruption.

In the case of Savitri Agarwal v. State of Maharashtra & Anr, the court held that the
belief of the applicant seeking anticipatory bail must be founded on reasonable grounds and
not just based on mere "fear".He must have a reason to believe that he is likely to be arrested
for a non-bailable offence and should disclose specific events and facts  which can help the
Court to judge the reasonableness of his belief.

In the case of M.C Abraham and Anr v. State of Maharashtra and Anr, the Apex Court
held that the police don't need to arrest a person merely because his Anticipatory Bail has
been rejected. in case the application for anticipatory bail has been rejected by the Court or if
an interim order is not granted during the pendency of the said application, then the
investigating agency to proceed with the investigation can arrest the said applicant without a
warrant.

Can A Juvenile Seek Anticipatory Bail U/S Section 438 CrPC

The Calcutta High Court on Thursday referred to a larger bench the legal issue as to whether
an application for anticipatory bail under Section 438 of the Code of Criminal Procedure
(CrPC) at the behest of a juvenile is maintainable. A Bench comprising Justice Arijit
Banerjee and Justice Bivas Pattanayak was adjudicating upon an application for anticipatory
bail sought by four minor

Section 438 CrPC : Supreme Court Deprecates Practice Of Filing Second Application
For Pre-Arrest Bail After Rejection Of First

Sushila Agarwal v. State of Delhi

The Hon'ble court was pleased to frame 2 questions while deciding the landmark judgment
viz.:
 1. Whether the protection granted to a person under Section 438 of Cr.P.C should be
limited to a fixed period so as to enable the person to surrender before the trial court
and seek regular bail &
2. Whether life of anticipatory bail should end at the time and stage when the accused
is summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by
holding that there can be no time limit set for the Anticipatory Bail by the court granting the
same. The five-judge bench was pleased to unanimously hold that:
The protection granted to a person under Section 438 Cr.PC should not invariably be limited
to a fixed period; it should inure in favour of the accused without any restriction on time."

Answering the second question the Hon'ble court held that:

The life or duration of an anticipatory bail order does not end normally at the time and stage
when the accused is summoned by the court, or when charges are framed, but can continue
till the end of the trial. Again, 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." The Supreme Court
was cautious while answering the second question by granting discretionary powers to the
court to limit the tenure of the Anticipatory Bail in case of special or peculiar facts of
case. Not granting Anticipatory bail may cause violation of fundamental rights of an
individual under Article 21 of the Constitution of India.

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat was
pleased to hold that:
The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised
under Article 21 of the Constitution which relates to personal liberty. Therefore, such a
provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of
the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process
which directs that if the person in whose favour it is issued is thereafter arrested on the
accusation in respect of which the direction is issued, he shall be released on bail."

The apex court while observing the above celebrates the two provisions and related them
together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand
and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld
the fundamental right of the citizen.  Compliance of section 41 (A) CrPc is mandatory in case
of offences punishable with maximum 7 years imprisonment.