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Anticipatory Bail

Anticipatory bail is a legal provision allowing individuals to seek bail in anticipation of arrest for non-bailable offenses, as defined under Section 438 of the Criminal Procedure Code. It is not a constitutional right but a statutory one, aimed at preventing undue harassment through pre-trial detention. The court may impose conditions on the bail, and its effectiveness can vary based on case specifics, with some rulings suggesting it may not have a time limit while others advocate for a limited duration.

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28 views6 pages

Anticipatory Bail

Anticipatory bail is a legal provision allowing individuals to seek bail in anticipation of arrest for non-bailable offenses, as defined under Section 438 of the Criminal Procedure Code. It is not a constitutional right but a statutory one, aimed at preventing undue harassment through pre-trial detention. The court may impose conditions on the bail, and its effectiveness can vary based on case specifics, with some rulings suggesting it may not have a time limit while others advocate for a limited duration.

Uploaded by

Lohita Deora
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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11/21/2024

Anticipatory bail
• Offence committed- if person arrested
if offence bailable – sec 478 If offence non bailable –sec 480
• If not arrested , or anticipation of arrest‘ then

Sec 482. anticipation of arrest'

• anticipation of arrest' Known as Pre arrest bail..


• Anticipatory bail is literally applied for in anticipation of arrest'.
• It is a direction to release a person on bail, issued even before the person is
arrested.
• If the accused has a reason to believe that he or she may be arrested on
accusation of having committed a non-bailable offence then
• he or she has the right to apply for an anticipatory bail in the Session Court or High
Court.
• It is not a bail presently granted by the Court in anticipation of arrest. When the
court grants anticipatory bail it means is that in event of arrest the person shall be
released on bail.

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• In case of “Balchand Jain V. State of M.P.,” 1967 the


court has defined anticipatory bail as ‘bail in
anticipation of arrest’.
• Anticipatory bail is a direction to release a person on
bail, issued even before the person is arrested. An
explanation of Anticipatory bail is given by the
Supreme Court in the case of “Gurbaksh Singh Sibbia v
The State of Punjab” that under sub-section (1) of
Section 438 of the Code, 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.

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• A person can apply for anticipatory bail even after the


FIR is filed, but not if the person has been arrested
already.
• 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”
• Section 438 deal with anticipatory Bail
• the object of Section 438 is to prevent undue
harassment of the accused persons by pre-trial arrest
and detention

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Whether to seek anticipatory bail is


constitutional or fundamental right or
statutory right
• Kartar Singh v. State of Punjab, [1994] 2 SCR
375, (1994) 3 SCC 569
• there is no constitutional or fundamental right
to seek anticipatory bail. Section 438 of the
CrPC is just a statutory right.

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PROVISION RELATING TO ANTICIPATORY BAIL UNDER CRIMINAL CODE OF


PROCEDURE

Where any person has a 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 .

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Conditions
• 2. When the High Court or the Court of Session makes a direction
under subsection (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) Available - a condition that the person shall make himself
available for interrogation by a police officer as and when required;
• (ii) Threat to witnesses- 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) Leaving India - a condition that the person shall not leave India
without the previous permission of the Court;
• (iv)Conditions u/s 437(3) - such other condition as may be imposed
under sub-section (3) of section 437, as if the bail were granted
under that section.

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Effect of Arrest
• 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).
• Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having
committed an offence under section 65 and sub-section
(2) of section 70 of the Bharatiya Nyaya Sanhita, 2023

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Timing of effectiveness of anticipatory


bail
• Whether an anticipatory bail should be for a limited period of time.
• In the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab
Supreme Court observed that if once a anticipatory bail has been taken no
need to apply for regular bail. There is no time limit. It is continue till the
trial unless it is cancelled.
• In the case of Salauddin Abdulsamad v. State of Maharashtra (1995)
Supreme Court said that orders of anticipatory bail should be of a limited
duration. After certain period person must apply for regular bail either
under section 437 or section 439.
• SS Mhetre vs State of Maharashtra & Ors (2010) case: SC held
that “life/duration of an order granting anticipatory Bail could not be
curtailed.”
• In the case of Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. (2017)
Supreme Court observed that there are conflicting opinion decided in
several cases. So Supreme Court referred the matter for Constitutional
Bench.

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11/21/2024

Sushila Aggarwal & Ors. v. State (NCT


of Delhi) & Anr. (2020) SC
• There is nothing in CrPC that indicates the
grant of anticipatory Bail should be time-
bound.
– However, under CrPC, it is discretionary power of
the Court to decide on a case-to-case basis and
impose a time limit while granting pre-arrest Bail.
– Also, this duration primarily does not end after
first summoning by the Court and can continue till
the end of the trial period.

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• If any Court wants to limit the Bail, it can attach


special features or circumstances warranting the
same.
– The Court while granting anticipatory Bail,
should examine the seriousness and gravity of
the offence (like nature of the crime, material placed
on records, etc.) to impose any condition on the
petitioner, if necessary.
– The police can reach the Court seeking permission for
arrest in case of breach of such imposed conditions.

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• Application for anticipatory Bail could be filed by a


person before the FIR (First Information Report) as soon as
the facts make clear there is a substantial reason for the
arrest.
• Appellate jurisdiction to check the correctness of the
granted Bail lies with the superior Court on the request of
the investigating agency or the State.
• The Court remarked that “when Parliament has not
thought it appropriate to curtail the rights of the citizens
and the power of Courts in granting anticipatory Bails,
hence, it is not in larger societal interest to curtail such
powers & limit the liberty of citizens. The rights of the
citizens are fundamental and not the restrictions.”

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