Understanding Anticipatory Bail

Since the beginning of human civilization, right to liberty of a human being has been upheld in utmost esteem. The legal systems of the world have set procedures in place which ensure that individual freedom and liberty are never challenged except by a legal trial. Forefathers of India and authors of the biggest constitution of the world, in line with these basic principals, devised laws that celebrate “liberty, fraternity and equality” of all citizens. Section 438 of Criminal Procedure Code (CrPC) is one such law and our point of discussion.


Section 438 of Cr.PC doesn’t use the phrase “Anticipatory bail“. The phrase therefore is a common euphemism used by the legal fraternity to ensure understanding by common man and effectively so. The difference between a regular bailand an anticipatory bail order is that the former is sought after the arrest while the latter is sought in anticipation of an arrest and can be presented during the time of arrest and is effectively immediately. The section, however, doesn’t specify whether the arrest is apprehended in a court or by the police. Issuance of summons for appearance by a magistrate also entitles one to apply for anticipatory bail.

This particular provision under Section 438 of CrPC was recommended by the Law Commission of India in its 41st report. Since then it has been invoked, defined and applied in many different legal scenarios. The report says ““The necessity for granting anticipatory bails arises mainly because some times influential persons try to implicate theirs rivals in the false cases for the purposes of disgracing them or for other purposes by getting them detained in jails for some days. 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 persons accused of an offense 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.”

This section, however, has exceptions in case of the states of Uttar Pradesh and Uttaranchal. During a nationwide emergency in the year of 1975 by the then prime minister Indira Gandhi, the provision of anticipatory bail was omitted by inserting Section 9 in UP Amendment act, 1976. More recently formed state of Uttaranchal, carved out of Uttar Pradesh, also inherited the same law. An applicant seeking relief under Section 438 in these states has to move to Allahabad High Court or its bench in Lucknow to get a stay on arrest under Article 226. A PIL was filed in the Supreme Court of India in the year 2015 challenging this provision as a contradiction to the very preamble of constitution. The order on this is still pending.

In a milestone case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab, (1980) 2 SCC 565, the Constitution Bench of Supreme Court summarized the law reflected in Section 438 and laid down certain principles as to when the discretionary power to grant anticipatory bail may be exercised by a Court.

As discussed earlier the anticipatory bail is issued before the arrest has been made. There have been cases in which SC has advised that an anticipatory bail can be granted even after filing of chargesheet and issuing of arrest warrant by a sessions court or a High court. Sheikh Kasim Bi vs The state of Andhra, AIR (1986) AP 345 says “…we hold that the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not pub an end to the power to grant bail under S. 438(1), Cr. P. C., and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person.

In order to seek an anticipatory bail the applicant has to prove his/her apprehension for a possible suit against him. He is supposed to provide valid proofs/documentation substantiating his/her story; a mere statement is usually not entertained.

To ensure that the provision is not abused by unscrupulous elements, the opposing party is notified or a public-prosecutor is engaged to contest the application in front of a magistrate. The court, if it thinks fit, may grant the bail which could be produced by the applicant at the time of his arrest to the investigating officer. In case of rejection of the same the individual may move to a higher court and challenge the preceding order.

In many cases wherein the bail is rejected the court issues directions that the applicant may apply for a regular bail in case of an arrest. Rashmi Rekha Tathoi and anr. vs State of Orissa and Ors. Supreme Court Criminal appeal no 750 of 2012 Arising out of SLP (Crl.) no. 7281 of 2011 and Criminal appeal no 751 of 2012 Arising out of SLP (Crl.) no 7286 of 2011. In this judgment, though, the SC dismissed the bail application upholding the orders of Orissa High Court, it advised the applicant to apply for regular bail after the arrest has been made.

The orders granting bail remain valid until it is cancelled by the same or a higher court or until the final verdict. This bail, however, is not a blanket cover against multiple offenses or different parties. The bail is directed only against the particular apprehension contested and proved in the court.

This granting of freedom by the means of an anticipatory bail usually comes with a lot of responsibility. The Court may choose to apply conditions, it deems necessary, to the bail order. Commonly used conditions are:-

The accused should cooperate completely with the police during the entire investigations in order to solve the case.

Another and one of the most extensively discussed condition is that the accused should not try to hamper the investigation procedure by influencing any witness and/or co-accused by the way of thereat or bribe. In some cases magistrates or judges lay conditions directing that the co-accused and/or co-accused shouldn’t be seen in the vicinity (usually a prescribed radius) of a witness’ residence.

An accused is also sometimes directed not to leave the country or the state while the trial is still pending. This is done in order to ensure that the police have access to the accused for investigation. Few situations require accused reporting to the I.O. periodically or to seek approval for domestic or international travel.

In the renowned case of sexual harassment filed by a woman colleague against ex-TERI chief R.K. Pachauri, the sessions court and consecutively the High court of Delhi has imposed stringent travel restrictions during the pendency of trial. He has been warned against alleged threat to the complainant and has had a bail bond amount forfeited because of violating his travel restrictions.

Though freedom of a person is one of the most important driving factor behind granting anticipatory bail, a court has complete authority to dismiss this request and recommend judicial custody for a person. A high court or the Supreme Court may also cancel an earlier issued anticipatory bail order.

Denial for anticipatory bail is heavily based on the older antecedents of the accused. If the accused has had a series of suits against and/or convictions against him, the anticipatory bail may not be given. The declaration of being a “proclaimed offender” usually goes against the accused and poses a challenge in the way of getting his/her applications approved.

In the case Supreme Court criminal appeal no. 1331 (2012) the accused went absconding to avoid execution of arrest warrant against him and did not report to the assigned police station despite interim protection granted by the SC. In face of which his entitlement to an anticipatory bail stood cancelled and his application dismissed.

An anticipatory bail is usually denied in case of a grave offense, national threat issue or sedition charges. In this scenario the accused is considered as a possible threat to the society. Also these cases usually require longer and continual access to the accused by the police, hence the remand becomes inevitable.

Kerala High Court in its order denying anticipatory bail to a celebrated politician in Against The Order In Crl. M.C. vs By Advs. Sri.M.K.Damodaran (Sr.), (Crl.) A. No. 125 (2016) said, “The law applies equally to all. It applies to the rich and poor, mighty and downtrodden and literate and the illeterate alike. We do not find that the averments made, as stated above, would in any way help the appellant to get any extraordinary treatment in the matter of anticipatory bail.”

Anticipatory bail has been denied in cases where the weapon of offense, case property and/or vehicle of offense is yet to be recovered. If a co-accused is still to be identified and arrested, police requests for a remand period for the accused.  In such cases too a bail is denied.

The ambit of Section 438 pertaining to anticipatory bail is very wide with courts being given total discretion for decision. And it is so keeping in view the varied variety and nature of cases that are witnessed daily in different courts and it’s applicability in every one them. The basic principle at the root of all this exercise is delivery of justice to the aggrieved while safeguarding citizen rights.


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