Introduction:
‘Anticipatory Bail’ is nowhere defined in the Code of Criminal Procedure (Cr.P.C.). But its relevance to the personal liberty of any individual makes it a very important concept of the Code. The word Bail owes its origin to Latin word Bajulare which means ‘bear a burden’, and from there it descended into Old French term ‘Bailer’ which meant ‘take charge of’ and then to Bail which meant in French ‘custody’ and then it finally blended into Middle English vocabulary. If today we join all these old terms into one, we would come up with the definition of Bail as, a court at trial. Sometimes third party surety or property or money is also granted by accused for getting bail. This simply meant for imposing a burden of appearance on an accused person whether guilty or not, who had made a promise for the sake of his release.
The underlying principle behind bail was described in the 1973 case of Supt. and Remembrancer of Legal Affairs vs. Amiya Kumar Roy Choudhry where Calcutta High Court held necessity of Bail is to dovetail two conflicting demands, namely, on one hand, the need of protecting the society from criminals, as it puts a burden on a person accused for mandatory appearance in the court, while on other hand, it protects the innocent person from confined custody by releasing himself/herself until proven guilty. In Sunil Fulchand vs. Union of India it was observed that effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through sureties. Anticipatory bail which is the epicenter of this article is departure from the rule of Regular Bail imbibed under sec. 437 and 439 of the Code.
In Anticipatory Bail a person only on the “anticipation of being arrested” can make petition for a bail under section 438, by which on the discretion of the court he may be issued a notice of release or not released as the case may this feature makes it remarkably interesting and important section playing a very vital role in getting a person released who is in fear of being arrested. But it comes with certain conditions and factors which cannot be overlooked.
Historical Background
If we look into the Code of Criminal Procedure, 1898 no provision in regard to Anticipatory Bail could be marked out. The 41st Report of Law Commission dated September 24, 1969, for the first time pointed out the anticipatory bail in the Code. Para 39.9 of this Report (Vol. 1), suggested for the release of a person on bail prior to his arrest, in order to protect the arbitrary violation of the right to personal liberty of the person. The necessity of introducing this bail lies in the facts that:
- In the light of emerging political rivalry, influential persons for the purpose of disgracing their rivals, implicate them in false cases.
- Apart from the false cases, when there are reasonable grounds for believing that a person accused of an offence is not likely to abscond or misuse his liberty on bail, then there is no need to first submit him/her to custody, make him/her remain in prison and then apply for the bail. In such genuine cases, bail could be granted earlier.
- In order to discourage arbitrary arrests often leading to harassment and humiliation of innocent citizens, Anticipatory Bail acts as “crucial underpinning to shield an individual’s personal liberty in a free and democratic country.”
- In Shahzad Hasan Khan vs. Ishtiaq Hasan Khan,[1] it was observed “Liberty is to be secured through a process of law which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community. So that parties do not lose faith in the institution and indulge in private retribution.
Anticipatory Bail and Nature of Offences
Under the Code of Criminal Procedure, the offences have been classified into two the categories of Bailable offences and Non Bailable offences. Section 2(a) of the code defines, “Bailable Offences” as an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and “Non- Bailable Offence” means any other offence.
Although the Schedule has classified these offences on the basis of nature and gravity of offences, the chances of getting the bail is higher in the offences which are punishable with imprisonment for less than 3 years, while offences punishable with imprisonment for three years or more are classified as non-bailable offences. Bailable offences are not very serious in nature and may include crimes like unlawful assembly, payment of bribe during elections, stalking, criminal defamation, participation in riots, causing death by negligence, etc. thus sec 436 of Cr.P.C. lays down provisions for granting bail to a person accused of any bailable offence under IPC.
On the other hand, non-bailable offences are serious and grave in nature and may include offences like sedition, murder, rape, abetment of suicide, trafficking of a person, etc. ; section 437 of Cr.P.C. thus lays down the power to grant bail to a person accused of committing a non-bailable offence under IPC. From this discussion, we can say that application for bail can be filed for both bailable and non-bailable offences under sections 436 and 437, but the grant of bail in former situation is a matter of right while in the latter situation it is not a right but privilege is granted by the discretionary power of the court.
Anticipatory Bail – Section 438
Section 438 of Cr.P.C., 1973 originally consists of three subsections but after the amendment of 2005 and 2018; there have been major changes introduced in the procedure and functionality for granting Anticipatory bail. Let us dissect section 438 into the following headings:
Definition:
Under section 438(1) if a person has reason to believe the anticipation of being arrested on the accusation of having committed a non-bailable offence, he may apply to the Court of Session and High Court, directing if the court may think fit to release him on the bail in the event of such arrest.
Factors:
The addition made to the sub section1 of the principal section 438 in regard to the factors which the court may consider while rejecting or accepting the application for anticipatory bail:
- The nature and gravity of the accusation
- Previous records of the applicant as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence.
- Applicant’s possibility to flee from justice.
- Where the accusation has been made with the object of humiliating or injuring the applicant by having him so arrested. The court may either reject such application forthwith or issue an interim order of anticipatory bail but if no such interim order f application has been rejected by the Court of Session or HC a the case may be, an officer in charge is free to arrest the applicant without a warrant on the basis of accusation apprehended in such application.
In the interest of justice:
Another addition made to this subsection (1) of 438 by amendment 2005 is Subsection (1A) and (1B).
- In (1A) interim order is granted by the Court it shall forthwith issue a notice not less than seven days notice together with a copy of such order to be served on the Public Prosecutor and Superintendent of police with a view to give a reasonable opportunity of being heard when the application shall be finally heard by the court. In Balchand Jain vs. State of Madhya Pradesh [2] the court held that in extraordinary circumstances, the court can pass the order of anticipatory bail without notice to the police and Public Prosecutor as Ex Parte Order. This was added with the view that the police and public prosecutor can get sufficient time to contemplate on whether there is a necessity of granting anticipatory bail in a particular case.
- In (1B) the applicant seeking anticipatory bail if an application made to it by Public Prosecutor must be present at the time of final hearing of the application and passing of the final order by the court, the court considers such presence necessary in the interest of justice.
Conditions:
Subsection 2 of section 438 is present as part of the original Act since 1973. It includes conditions which the court of Session or HC may include while making directions under 438(1) i.e. rejecting or allowing the application of anticipatory bail. Such directed conditions which can be in the light of the facts of the particular case, as the court may think fit, may include:
- As and when required a person shall make himself available for interrogation by a police officer.
- 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;
- Without the previous permission of the court, the person shall not leave India.
- Such other conditions as may be imposed under subsection 3 of section 437, if the bail were granted under that section.
After the Anticipatory Bail is granted:
Section 438 (3) deals with the subsequent action when the Anticipatory Bail has been granted. After the Anticipatory bail has been passed, if the person subsequently get arrested without warrant by an officer in charge of the police station on such accusation, he shall be released on bail or if Magistrate issues a warrant against such person who has been granted Anticipatory bail under subsection 1 by the direction of the court, that warrant shall be a bailable warrant only.
Amendment, 2018:
After subsection 3 in the original Act, 1973, subsection 4 has been inserted by the Amendment Act, 2018. It is an exception to the application of Anticipatory bail. Rule of Anticipatory Bail laid down in Section 438(4) says that no anticipatory bail can be granted to a person accused of having committed an offence under:
- Subsection 3 of section 376, IPC- Punishment for Rape.
- Section 376AB, IPC- Punishment for Rape on a woman under 12 years of age.
- Section 376 DA, IPC- Punishment of Gang Rape on a woman under 16 years of age.
- Section 376 DB, IPC- Punishment of Gang Rape on a woman under 12 years of age.
These Amendments made in Cr.P.C. and IPC were the result of the outcry for harsher punishment of Rape after Kathua Gang Rape case where an 8-year-old girl in Jan 2018 was Gang Raped and murdered by a group of men, near Kathua in Jammu and Kashmir.
Object
The object of Anticipatory Bail was made clear in the case of K. Gajendra Naidu vs. State of Arunachal Pradesh[3] where the Court held that the necessity for granting anticipatory bail arises mainly because of the false cases which influential persons try to implicate on their rivals. And the necessity also arises from the reason that the person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail.
Scope
- NO BLANKET ORDER- while asking the court to grant Anticipatory bail, one cannot ask in the petition to grant protection, through the said charged on him, in future, this is called Blanket protection. No Blanket protection is contemplated under s. 438 of the Code, as it brings up the chances of failure of justice and lead the person to misuse his power granted to him through the special provision of Anticipatory Bail.
- NO TIME LIMIT- Recently in the case of Sushila Aggarwal vs. State (NCT of Delhi), 29 Th January, 2020. Supreme Court 5 bench has unanimously ruled that the protection granted to a person under s. 438 should not invariably be limited to a fixed period. This significant decision has come after a long chaotic and divergent views:
In Gurbaksh Singh Sibbia vs. State of Punjab,[4] it was ruled that Anticipatory Bail is right of an individual which should not be bound by time. This decision was overruled by SC case of Salauddhin Abdulsamad Shaikh vs. State of Maharashtra[5] where the court held that granting of Anticipatory Bail is “time-bound”.
Again in SS Mhetre vs. State of Maharashtra and Ors. [6] SC decision took a turn holding that life of an order granting anti-bail could not be curtailed.
Due to these divergent views, two issues have raised in the recent case of Sushila Aggarwal:
Whether the protection granted to a person under s. 438 Cr. P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek bail? Also whether the life of Anticipatory Bail should end at the time and stage when the accused is summoned by the Court?
To this, Court held that under s. 438 Cr. P.C. there is no fixed period of the protection to a person. Court held that the life or duration of the Anticipatory Bail continue till the end of the trial and does not end at the time and stage when the accused is summoned by the Court. But if special or peculiar features arise, the Court is open to limit the tenure of Anticipatory Bail.
Can Courts impose conditions while granting Bail or not?
If there are specific facts or features marked out in regard to any offence, other than the normal conditions under section 438(2) and section 437(3), it is open for the Court to impose any appropriate condition (including fixed nature of relief, or it’s being tied to an event), etc.
Powers of the Court
- Discretion of the Court:
In Gurbaksh Singh Sibbia vs. State of Punjab,[7] it was ruled that:
- Discretion of granting of Anticipatory Bail must be used more objectively and the power to correct it if the need arises, rests with the higher courts.
- Filing FIR is not a condition precedent to grant of Anticipatory Bail under section 438.
- The power of the Court is wide enough to grant or not grant Anticipatory Bail by exercising its discretionary power. It can be accounted by the fact that the criminal justice system cannot be engulfed in a straight jacket formula, thus powers depend upon facts and circumstances of different cases.
- There must be a reasonable apprehension of getting arrested for a non-bailable offence by the individual applying for Anticipatory Bail.
- It cannot be denied where the accused is suspected to have committed an offence punishable in the form of the death penalty or life imprisonment unless the Court refuses it by the justification of sufficient evidences.
- The provisions under s. 438 cannot be invoked after the arrest has been made as it is the pre-arrest provision and not regular bail.
- In case of interim bail, it is the discretion of the Court to send notice to prosecutor or not but it becomes mandatory afterwards.
In Directorate of Enforcement vs. P.V. Prabhakar Rao[8] SC held that Anticipatory Bail is granted by High Court or Sessions Court only after they have exercised their power of judicial discretion properly. It is granted only if the concerned court thinks it fit in order to avoid the misuse of this bail.
In Afsar Khan vs. State[9], the Court held that whether it is regular bail under s. 437 and 439 or Anticipatory Bail under s. 438; the Court has to exercise its discretion wisely and not arbitrarily. It should be granted only on reasonable grounds.
In Jitendra Singh vs. State,[10] the Court ruled that the Court needs to exercise its power of granting Anticipatory Bail in Judicial manner and keeping in mind the loopholes of the system.
- Cancellation of the Bail
The powers of the High Court is defined in Section 439 Cr.P.C. which also ensures the power to the High Court for cancelling the bail. From this provision only the power to cancel a bail has been derived and it is assumed that the Court which granted Anticipatory Bail can recall it or even cancel it ‘if needed. The same is applicable for Anticipatory Bail also because Anticipatory Bail is a special provision, releasing the person, presuming him to be innocent until proven guilty and under the fear of arrest. But if such person deems to misuse the bail granted or abscond his liberty, the Court may cancel his bail to meet the ends of justice. However, the bail granted by the police officer cannot be cancelled by the Court.
- Jurisdiction of the Court
In Chajju Ram v. State of Haryana[11], it was ruled that according to Section 438(1) an application for anticipatory bail can be made to the High Court or Court of Session; however, normally it is to be presumed that the Court of Session would be first approached for the grant of anticipatory bail unless an adequate case is made out for straightaway approaching the High Court directly without first coming before the Court of Session.
The Full Bench of Allahabad High Court has in Onkar Nath Agarwal v. State[12], however, taken the view that a bail application under Section 438 may be moved in the High Court without the applicant taking recourse to the Court of Session.
In Jagannath v. State of Maharashtra[13], it was held that if the application filed in the Court of Session for anticipatory bail is rejected, the applicant can again approach the High Court under Section 438(1) as there is no bar to do so.
In Salauddin Abdulsamad Shaikj v. State of Maharashtra[14], it was observed that the opinions expressed by Supreme Court in some of the cases seem to favour the view that the question of granting anticipatory bail to any person who is allegedly concerned with the offence must for all practical purposes be considered by the courts within whose territorial jurisdiction such offences could have been perpetrated.[15]
Exceptions to Section 438, Cr.P.C.
- The HC or Sessions Court cannot grant Anticipatory Bail where the police need to interrogate the accused in its custody to get crucial information about the case. (Natturasu vs. State[16]).
- Section 438(4) mentions the sections of IPC, under which Anticipatory Bail cannot be granted after the Amendment of 2018.
- Earlier the State of Uttar Pradesh was an exception to the rule of getting released under Anticipatory Bail, the provision was scrapped during emergency period in 1976 but after an estimate of 33 years; it has been introduced to release the accused before the arrest in cases of non-bailable offences.
Difference between an Anticipatory and a Regular Bail
- Anticipatory Bail is a pre-arrest bail while regular bail is granted after the arrest.
- Anticipatory Bail comes under the purview of Section 438 while regular bail is covered under sections 436 and 437.
- Only Sessions Court and High Court are competent to grant Anticipatory Bail, at initial level whereas Judicial Magistrate can also grant bail in the case of regular bail.
Critical Analysis
Anticipatory Bail is the tool to protect the personal liberty of the individual and safeguarding his image, which might be the target of his/her rivals for filing case against him. But at the same time, when innocents are protected under the umbrella of s. 438, many offenders roam free by being released on Anticipatory bail. Thus the Courts while granting Anticipatory bail must keep a very keen eye on the facts, evidences and other factors mentioned under s. 438., to actually meet the ends of justice, which the main objective of the Anticipatory Bail.
References:
[1] AIR 1987 SC. 1613r 1987 SCC (Cr) 415.
[2] 1977 AIR 366, 1977 SCR (2) 52
[3] 1992 (3) Alt 27, 1993 (1) ALT Cri 290.
[4] AIR 1980 2 SCC 565.
[5] 1996 AIR 1042, 1996 SCC (1) 667
[6] SLP (Crl.) No.7615 of 2009)
[7] AIR 1980 2 SCC 565
[8] AIR 1997 SC 3868 (15)
[9] (1992) Cr Lj 1676
[10] (1998) Cr Lj 1762
[11] 1978 Cri LJ 608 (P&H)
[12] 1976 Cri LJ 1142
[13] 1981 Cri LJ 1808 (Bom)
[14] (1996)1 SCC 667
[15] See http://www.legalserviceindia.com/legal/article-1456-a-brief-analysis-of-anticipatory-bail-under-section-438-
[16] (1998) Cr Lj 1762 (Mad.)
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