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Sourika Jana, Symbiosis Law School, Noida.

Date: 04.02.2022



Section 438 of the Indian constitution deals with the provision of anticipatory bail. A person who has a reasonable apprehension that they might be arrested can file for such bail. This is a pre-arrest legal relief provided to protect the liberty of an individual. The section hence emphasizes the principle that a person is innocent till proven guilty. It was added in the 41st law commission report which emphasizes the need for providing an interim relief since a lot of influential people had begun implicating their rivals in false cases. The following paper also provides the necessary conditions and eligibility criteria required to file a plea for anticipatory bail. The power to provide anticipatory bail is an extraordinary power granted only to the High Court and Court of Session and there is no straightjacket formula for the same. It lies with the court’s discretion. However, the court must use the power with utmost diligence. There are a few limitations placed on these powers. Certain acts of the accused disqualify his plea for anticipatory bail as his liberty would put the victims in a vulnerable position.

 Historical background

The evolution of the provision of anticipatory bail can be dated back to the year 1215 when the comprehensive charter of “Magna Carter” was introduced by King John of England. The 39th clause can be related to the Code of Criminal Procedure or Cr.P.C which outlaws the seizure of property or his rights without any lawful judgment. Hence, we can assume that it refrained from restricting any rights of a person unless there was a court-sanctioned order for doing so.

The provision of anticipatory bail was added by the 41st Law Commission report dating September 24, 1969, by the Parliament of India preceding which, Cr.P.C 1898, did not contain any provision regarding anticipatory bail. They emphasized the importance of introducing a provision enabling The High Court and Court of Sessions to provide anticipatory bail with their discretion. It was then incorporated in the 33rd chapter of Cr.P.C 1973 under section 438.

 Difference between bail and anticipatory bail

Bail is the act of release of a person arrested, from jail, on the promise that they will attend court proceedings against the accusations provided against him. It includes a personal and a bail bond. The provisions regarding bail are laid down in sections 436 to 439 in Cr.P.C.

Anticipatory bail, falling under the category of bails, is contingent. It is obtained by a person who anticipates arrest. This provision allows a person to get out on bail if arrested for committing a non-bailable offense. The intention of insertion of such a provision is personal liberty. No person shall be confined unless held guilty.

There are a few differences between bail and anticipatory bail. Where bail can be granted by any judicial magistrate or court, anticipatory bail can only be processed by a The High Court or Court of Sessions. Bail is a post-arrest legal process granted only after the arrest of a person. Anticipatory bail on the other hand is a pre-arrest legal process and applied for in anticipation of arrest. Bail can be granted in case of both bailable and non-bailable processes as according to section 437 in Cr.P.C but anticipatory bail can only be granted in case of non-bailable offences.

The difference was further highlighted in the case of Gurbaksh Singh Sibbia v. State of Punjab[1].

The Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest[2].

The following distinctions were highlighted in the case:

·       Plea for anticipatory bail cannot be rejected merely because the offence committed is punishable with imprisonment for life.

·       The registration of an FIR is not a condition necessary to apply for anticipatory bail. If there exists a reasonable belief that the person fears arrest even when FIR is not filed, then such a person can apply for anticipatory bail.

·       There must be substantive grounds for the reasonable suspicion of arrest and mere fear of arrest is not a reasonable ground to apply for anticipatory bail.

·       The courts have discretionary power to grant anticipatory bail which must be exercised with due caution and diligence. However, this is not a bar to providing anticipatory bails only in exceptional cases.

·       The restrictions provided in section 437 are not implicit when it comes to section 438.

·       The High Court or Sessions court must use its own mind on deciding whether the necessary conditions for anticipatory bail have been met. It must not rely on the decision of a magistrate.

·       If a court has reasonable suspicion that the accused may take undue advantage of anticipatory bail and flee, they might prevent the issuance of such an order.

Section 438 of Cr.P.C

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 non-bailable 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 a direction 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 sub-section (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 be issued 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).

Subsection 1 provides that the court has the power to grant anticipatory bail only to people who apprehend arrest for non-bailable offences. The section empowers only the High Court or Sessions Court to grant such relief. The parliament has however put some limitations on the exercise of such power.

·       The court shall consider the gravity of the offence committed before granting anticipatory bail.

·       The court shall take into notice the priors of the accused.

·       The court shall look into the accusations made by the FIR and make sure they are not mala fide in nature.

·       The court should make sure that the accused has no intention to flee justice.

Subsection 3 provides that after successful completion of the application if the accused is arrested without a warrant, they shall be released immediately. In case the magistrate issues any warrant against such person, it would be bailable in nature.

 Who can seek the bail and under what conditions?

 Any person who has a reasonable fear of being arrested, if succeeds in proving substantial evidence for the same, is eligible to apply for anticipatory bail against Section 438 of Cr.P.C. If a person fears arrest based on trumped-up charges and false claims made against them, it would make them eligible to apply for anticipatory bail.

However, State of M.P. v. Pradeep Sharma[3], laid down the clause that if a person has been declared as an absconder or proclaimed officer as according to the terms of section 82 of Cr.P.C. and has not complied with the investigation protocols, is disqualified from obtaining the bail.

Lavesh v. State (NCT of Delhi) [4], later confirmed this judgement:

When the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.

Conditions for applying for anticipatory bail:

·       The person shall respond and answer police investigations whenever required

·       The accused shall not make any threats to any person acquainted with the facts of the case or convince them not to disclose it infront of the court of law

·       The person shall not try to leave the country without the permission of the court

·       The High Court make ask the person released on bail to be arrested and put into custody if an application has been moved by the prosecution

In Rukmani Mahato vs The State of Jharkhand[5], the court held that a trial court cannot grant an accused interim relief if they have already filed a petition against a higher court of law and such matter is still pending before the superior court.

 Ambit and Scope

Section 438 of Cr.P.C empowers the High Court and Sessions Court to grant interim bail to anyone anticipating arrest. This extraordinary power can be used in cases where a person appears to have been falsely implicated or a frivolous case has been launched against him or where the case maybe that the arrest imposes a serious infringement on the rights of the arrested. There is no limitation on when the power can be used and it is completely up to the discretion of the court to grant bail in whichever non-bailable offence the accused has committed.

The constitution bench in Gurbaksh Singh Sibbia and Others v. State of Punjab[6], stated that

…A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear (without reason) of the power to grant anticipatory bail.”

 Case laws

In Bachu Das v State of Bihar[7], the court decided if the actions of the accused were against Section 18 of the SC & ST Act, they were not eligible to apply for anticipatory bail. Any prima facie case against the accused regarding Section 3 of the SC & ST Act and sections 147, 148, 149, 323 and, 448 IPC immediately creates a bar against interim relief. When the atrocities are committed against the “untouchable” classes, there is reasonable apprehension that once the apprehender is granted bail, he might resort back to his old acts of terrorizing his victim. Hence, a plea for anticipatory bail may be denied in the above case. The offenses under the act are dehumanizing in nature sought to degrade one’s status in society and prevent them from living a life of dignity. “Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude.”[8] Hence in this case, it is not violating the right to life of the accused.

In MC Abraham v State of Maharashtra[9], the bail application of the accused had been rejected several times. However, the investigating officer did not consider it necessary to arrest him. The High Court instructed the state to arrest the petitioner. In an appeal, it was held that the High Court had no authority to interfere with the investigation. Rejection of bail application was not a sufficient ground for the Court to direct his arrest. Even after anticipatory bail is rejected, the person may not be put for trial as sufficient case cannot be made against him. The idea that he has to be arrested just because his bail requests have been turned down is erroneous in nature.

In Manju Devi v Onkarjit Singh Ahluwalia @ Omkarjeet Singh[10], the complainant filed a complaint before the court of Chief Judicial Magistrate that the respondents broke into her home and tried to outrage her modesty. After her escape, the respondents proceeded to call harass and insult them by using casteist slurs. The Magistrate took cognizance of the report and ordered detention against sections 323, 354 and 452 of the IPC and section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989. The respondents then filed an appeal before the High Court for anticipatory bail which was then granted by a single bench judge. An appeal was then filed against this order to the apex court who overturned the decision of the High court.

  • “In view of the above discussion and in the light of the specific averments in the complaint made by the complainant, we are of the considered opinion that section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 creates a bar for invoking section 438 of the Code and the High Court has committed grave error in granting anticipatory bail to the respondents. Accordingly, the order dated 03 December 2014, passed by the High Court, is set aside.
  • The appeal is allowed. The respondents are granted four weeks’ time from today to surrender before the appropriate court and seek for regular bail. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial court is free to decide the case on the merits.”

Sushila Agarwal v. State of Delhi 1 is a landmark judgement when it comes to the provision of anticipatory bail.

The question was regarding the time period of the bail. Two issues were placed infront of the Hon’ble Supreme Court:

1.     Should there be any time limit fixed to Section 438 of Cr.P.C which enables the person to surrender before the court and then proceed to seek regular bail

2.     Whether the life of anticipatory bail end when the accused is summoned for trial to the court

The fie bench judge unanimously held that there shall be no time bar to the protection granted by Section 438 of Cr.P.C. As the interim relief provided is to make sure the accused doesn’t suffer harassment pre-arrest, setting a time bar would violate Article 21. They held that Article 21 and Section 438 of Cr.P.C. go hand in hand.

The apex court held that the life of the anticipatory bail does not end with the beginning of the trial but can continue indefinitely till the end of the trial. It does not end when the charges are framed or the accused is summoned to court. It is up to the discretion of the court to end the tenure of the bail.


Importance and effectiveness of anticipatory bail

Section 438 of Cr.P.C. and Article 21 of the right to life go hand in hand. The provision of the right to life and the right to live with dignity has been enshrined in the above section. The provision was first brought into force because a lot of times influential people tried to implicate their rivals in false cases for the sole purpose of disgracing them or hampering their reputation. They use the legal means to put their rivals into detention for some days.

The right to life is also protected as a great amount of humiliation and disgrace is involved in an arrest. It may lead to loss of person, pocket or property. Loss of reputation is attached to it even though a person might be acquitted. For common people arrest is equivalent to some heinous crime and detention even in the early stages equals a shameful and heinous crime. Hence even after they’re acquitted the damage done sometimes becomes irreparable. Arrest and detention directly affect the life and liberty of a person. The Indian constitution puts great emphasis on the liberty of an individual.  Hence if an individual applies for anticipatory bail on the reasonable apprehension that his liberty is at risk without any substantial cause the court might grant him such relief.

The purpose of the section was to recognise the importance of liberty and give it due stature in a free democratic country. The section hence enshrines the age-old principle that a person is innocent till proven guilty beyond all reasonable doubt.

[1] (1980) 2 SCC 565

[3] (2014) 2 SCC 171

[4] (2012) 8 SCC 730

[5] 2017

[6]  AIR 1980 SC 1632 [LNIND 1980 SC 168] : 1980 SCC (Cr) 465

[7]  2014 Cr LJ 1828 (1830) (SC): (2014) 3 SCC 471: (2014) 135 AIC 11 (SC)

[8] RP Kathuria: Supreme Court on Criminal Law (1950-2018), 10th ed, LexisNexis India

[9] (2003) 2 SCC 649: 2003 SCC (Cr) 628: (2003) 1 Crimes 302(2002) 10 JT 482.

[10] 2017 13 SCC 439: 2017 SCC Online SC 348 : (2017) 4 SCC (Cri) 662 : AIR 2017 SC 1583 : 2017 (3) Scale 699 : LNIND 2017 SC 145

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