01st Oct 2021
This article is submitted by Priyanka Purohit, pursuing B.B.A.LL. B(H) from SOA National Institute of Law, Bhubaneswar.
The judicial system believes in bail and not jail. Bail is considered as a right of a person who has been taken into custody for a Bailable offence. And in the case of non-Bailable offences, it may be granted at the discretion of the court. Time and again in various cases, the Indian judiciary has connected the right to Anticipatory Bail to life and liberty. But still, it is not considered as a right of an individual’s, personal life and liberty under Article 21 of the Indian Constitution.
The purpose behind this article is to put the concept of anticipatory bail and its provision in lucid terms. The article also shows the judicial interpretation of the anticipatory bail provision with landmark judgements alongside.
The article also clarifies how anticipatory bail is different from regular bail and the importance to safeguard people from unscrupulous false complaints. Often fake complaints of offences of non-bailable nature are made against innocent people, to retain such person in custody or to defame a person. Anticipatory bail is a kind of bail that can safeguard people from getting retained in unnecessary custody.
Keywords: Bail, Anticipatory Bail, Life, Liberty, Fundamental Rights, Constitution, Freedom.
The Constitution of India provides every citizen with the Fundamental Right of freedom under Article 21. Under this Article of the Indian Constitution, every citizen is guaranteed a right to a dignified life and personal liberty. But this freedom can also be restricted and a person would have to face consequences if such person violates the rule of the land. When a person is found to have committed an offence, such a person is arrested and such arrest deprives the individual of its right of personal liberty. The act of release on bail sets the person free. The concept of Bail is directly linked to a person’s right to personal liberty.
Bail is an important element in criminal jurisprudence. The word ‘Bail’ is not defined anywhere in the Criminal Procedure Code, 1973, yet there are terms like ‘Bailable offences’ and ‘non-Bailable offences’ defined under section 2(a) of the procedural code. It states that bailable offence means any offence which is shown as bailable within the first list or made bailable by any law at the time being in force, and the non-bailable offence is defined as any other offence other than bailable offences.
Black’s Law Dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated whenever he is asked to submit himself to the jurisdiction of the court” (Black, 1968). Bail can be defined as a surety that an arrested person provides to the law to release the person, by signing a bail bond that such person will appear before the court as and when asked for. In the case of a bailable offence, release on bail is a matter of right of an arrested person, whereas, in the case of a non-bailable offence, the arrested person can apply for bail and such bail is granted only at the discretion of the court. Section 437-439 of the Criminal Procedure Code, contains few important provisions relating to bail.
HISTORICAL BACKGROUND BEHIND ANTICIPATORY BAIL AND HOW IT IS DIFFERENT FROM BAIL
The Criminal Procedure Code of 1898 did not have any provision for anticipatory bail. The idea for Pre-arrest bail was recognised after the 41st Report of The Law Commission of India. Latter Anticipatory bail was present in the new Criminal Procedure Code, 1973.
As per the report, the necessity for pre-arrest bail is to safeguard the principle of freedom and liberty. Often influential people try to indulge their rivals into false cases, to disgrace them or to put them behind the bars for some days. Also, the report stated that, other than false cases where there is reason to believe that the person will not misuse his liberty while on bail, then there is no substantial reason to hold the person in custody, retain him in jail where further he would apply for bail.
The three very prominent differences between Anticipatory Bail and regular bail are-
- Regular bail is a remedy available to the arrested person after he is taken into custody whereas, Anticipatory bail is a remedy available to a person before such person is arrested. A person having apprehension that he might get arrested for an accusation of committing a non-bailable offence can apply for Anticipatory Bail.
- Regular bail may be granted to the accused by any judicial magistrate or court whereas, the power to Grant Anticipatory bail is only vested on the High court and the Court of Session.
- Bail in case of bailable offence is granted as a matter of right and in case of non-bailable offence, it can be granted as per discretion of the court. In the case of Anticipatory bail, it is granted as per the discretion of the High court and the Court of Session, and discretionary power is extraordinary.
PROVISION OF ANTICIPATORY BAIL
Anticipatory bail as its name suggests is- bail in anticipation or apprehension of the arrest. It is also called a pre-arrest bail. Although the Criminal Procedure Code does not provide a clear definition of Anticipatory bail, section 438 of the Criminal procedure Code, is a provision relating to Pre-arrest bail.
Section 438- (1) as per this section when a person has some substantial reasons to believe that he may get arrested on an accusation of committing any non-bailable offence, then such person can apply for a pre-arrest bail, to the High Court or Court of Session, for a direction under this section, and if the court thinks it fit, then the court may direct that in the event of such arrest, the person shall be released on bail.
(2) Conditions imposed by court while granting bail under subsection 1 of section 438
- The person shall make an appearance before a police officer for necessary interrogations, as and when called for;
- The person shall not make any kind of direct or indirect inducement, or interfere, or threat, or promise any person who is related with the facts of the case, to dissuade such person from disclosing any fact to the court or the police officer.
- Without the prior permission of the court, the person shall not leave the country and travel abroad.
- Lastly, any other condition mentioned under section 437(3) of the Criminal Procedure Code, as if such person was granted bail under Section 437.
Subsection (3) of Section 438 states that that where a person is arrested without warrant by an officer in charge of a Police Station, even after the court has granted Anticipatory bail to such person, and if such person is prepared to be given bail while such person is in custody or at the time of arrest, then such person shall be released on bail. Also, if a magistrate taking cognizance of such offence decides that at first instance a warrant shall be issued against that person, then a bailable warrant shall be issued in conformity with the direction of the court under subsection (1) of section 438 of the Criminal Procedure Code, 1973.
In the case of Balchand Jain vs State of Madhya Pradesh, The court held that ‘Anticipatory bail’ can be rightly stated as bail in ‘Anticipation of Arrest’ and where a competent court allows the bail, an order to release the arrested person is granted.
Section 438(4) is an exception to section 438. It states that section 438 is not applicable in cases of the offence committed like- Rape and Gang Rape under the provision of Section 376(3) Section 376AB or Section 376 DB of the Indian Penal Code, 1860.
WHICH COURT CAN GRANT ANTICIPATORY BAIL?
The power of granting Anticipatory Bail is unusual and extraordinary, and hence this power is entrusted to the Higher authorities of judicial service, which is the Court of Session and the High court. Often there has been a controversy as to whether an application for Anticipatory bail in the first instance, should be filed at the Court of Session or the High Court. While ordinarily reading the provision of Section 438, it states – the High court or the court of Session. This creates confusion as to whether to approach the High court at first, whereas as per the rule, any matter should be first taken to the lowest of courts competent to hear it and having jurisdiction. Where the lower court rejects the matter, then it is taken before the High court. This hierarchy is followed for any matter dealt with in the judicial system.
Relating to this similar controversy The Allahabad High court has given an opinion in the case – Harendra Singh v. the State of U.P, that without exhausting remedies of the Court of Session, an application for bail filed under Section 438, in the High court, shall not be maintainable.
Also, in the case of Vinod Kumar v. the State of U.P, The Allahabad High Court held that to apply for bail under section 438, directly in High court, the applicant has to prove the exceptional, unusual and urgent circumstance to approach the High Court, before exhausting the remedy available at Court of Session.
Hence ordinarily, at first instance, an application for Anticipatory bail should first be filed at the Court of the Session, and upon exhausting remedies available there, then move to the High Court. But in case of urgent and unusual circumstances, such an application can be filed directly in High Court, provided the applicant has to justify the same to the court.
JUDICIAL INTERPRETATION ON SECTION 438 OF CRIMINAL PROCEDURE CODE, 1973
Over the years a lot of cases have evolved regarding the grant of Anticipatory bail. However, for the very first time, the Supreme court in the case of Gurbaksh Singh Sibbia v State of Punjab, laid down the principles for grant of Anticipatory bails in detail. In the instant case, the High court held that the power to grant Anticipatory bail is extraordinary and unusual and must be exercised carefully in only exceptional cases. Further, it observed that an applicant should make out a special case to get a grant of bail under section 438. Also, in a case where the investigation agency asks for remand of accused in police custody, then section 438 should not be exercised. The court also held that for public interest this discretion of the court should not be exercised in serious economic offences like blatant corruption. Later this matter was again taken to the apex court challenging the order of the High court, where a 5 Judge Constitutional bench not only reversed the decision of the High court but also, laid down an expansive guideline which is as follows-
- The term “reason to believe” must be interpreted carefully and while granting Anticipatory bail, the applicant must have substantial reasons to believe that he might get arrested on an accusation of a non-bailable offence. The reason to believe must not be founded on grounds of mere suspicion. There have to be substantial grounds that led the applicant to such belief and also his application must show the specific facts and circumstances or events that led him to believe so. The belief must be founded on certain tangible grounds, for the court to examine and determine objectively. The apex court had also stated that mere fear cannot be considered a belief and hence is not a sufficient reason to believe.
- The High Court and the Court of Session has been granted discretionary power by the legislature by the term “may, if it thinks fit” mentioned in Section 438. The court held that this discretion must not be narrowed down as was done by the High court by introducing various conditions into the statute that were not ordinarily found. The court further suggested avoiding generalising like “economic offences” or “case of blatant corruption” which earlier the High court did, as it would destroy the very purpose of discretionary power granted to these courts and will also hamper the interest of the applicant. The court also stated that there is no straitjacket formula to exercise discretionary power under section 438.
- The apex court held that the court has to maintain a balance between personal liberty and the investigational power of the police. There is a substantial public interest that is involved in the investigational power of the police. Also, the refusal of bail affects the personal liberty of a person regarding freedom of movement as specified under Article 21 of the Indian Constitution. The apex court suggested that to prevent the conflict of interest, usual conditions can be imposed on the applicant to co-operate with the investigation agency as well as not tamper with the evidence while granting an order under section 438.
- The supreme court further clarified that although the power of granting Anticipatory bail is unusual and extraordinary, does not lead to the conclusion that it has to be exercised sparingly. The apex court stated that no two cases are similar so, no formulae can be derived while granting bail in those cases. Rather, for each case, the power to grant bail under this section should depend on the specific facts and circumstances of that case.
- The court clarified that even after an FIR, Anticipatory bail can be granted, as long as the applicant is not arrested. The court also stated that filing of FIR does not work as a condition precedent, to exercise the power under section 438. Hence even when the FIR is not filed, and still the applicant has a reason to believe that he might get arrested on an accusation of committing a non-bailable offence, the court can sufficiently decide on such belief.
- The remedy under section 438 cannot be exercised after arrest. Hence when post-arrest, a person wants a remedy of bail, he can proceed under section 437 or section 439 of the code.
- Factors While Granting Anticipatory Bail– To exercise the discretionary power given to the Court of Session and The High Court, there are a few factors that need to be fulfilled, and while grant of an Anticipatory bail the following factors that the court needs to consider-
- Firstly, the court must examine the gravity and nature of the offence.
- It has to be checked whether the applicant has previously been convicted and underwent imprisonment.
- The applicant must not have the intention to abscond or misled the court.
- The accusation should be done to defame the reputation of the applicant.
- The apex court specified that an applicant cannot be directed to be released on bail, whenever for whatever offence is committed. No blanket order is to be issued, an applicant has to specify in the application, specific accusation against which relief is prayed for.
- Lastly, the court held that normally there should not be any limit to the time period of bail and it can continue till the end of the trial. However, in certain cases where the court has to limit the time up to a reasonable time period after FIR, the court here can direct the applicant to get an order of bail under section 437 or Section 439.
NOTABLE LANDMARK JUDGEMENTS
After the expansive guideline given by the Supreme court in the case of Gurubaksh Singh Sibbia, a majority of the judgements reiterated the judgement of this case. But there were a few decisions that expressed slight divergence then the law settled in Gurubaksh Singh Sibbia’s case. The following cases are discussed below-
- The Supreme Court in the case of Samunder Singh v. the State of Rajasthan observed that where a person is involved in a dowry death case, then the High court should not grant Anticipatory bail to that person.
- In the case of Directorate of Enforcement v. P.V Prabhakar Rao, popularly called the “Urea scam case”, the Apex court refused to grant Anticipatory Bail. The court held that the evidence and materials collected disclosed an ‘Accusing finger’ against the respondent, who contributed to the non-completion of the investigation. The Supreme court observed that the exercise of power to grant Anticipatory Bail, in this case, was not justified.
- In the case of State (CBI) v. Anil Sharma, where Anticipatory bail was refused to an MLA and son of a former Union Minister for Telecommunications, because they were considered as an influential person, and granting Anticipatory bail to them could hamper the investigation. The Supreme court, in this case, observed that, in cases like this, thorough interrogation of a suspected person is of utmost advantage in disinterring useful and relevant information and materials, which otherwise would have got concealed if the suspected person knew that he is well protected under section 438, while he will be interrogated.
- In Sidhram Mhetre v. the State Of Maharashtra, The supreme court observed that where the accused has joined the investigation and is willing to co-operate, and has no intention to abscond from the trial, then custodial interrogations should be avoided in such case. The court in this case also clarified that the power to excise under section 438 is extraordinary but it does not mean that it could be only exercised in rarest of rare cases.
- In the case of P Chidambaram v. Directorate of Enforcement, the High court of Delhi refused the grant of Anticipatory bail of the appellant, a former Union Minister, stating that- “It is a classic case of money laundering”. Later when the case matter was taken to the Supreme Court, the bench observed that granting pre-arrest bail in economic offences would hamper the investigation and hence did not grant Anticipatory bail.
CANCELLATION OF ANTICIPATORY BAIL
The court which has the power to grant Anticipatory Bail, the Court of Session and The High Court, is the same court that has the power to cancel Anticipatory Bail. Cancellation of Anticipatory Bail may arise due to new circumstances or situations arising after the bail. There can be situations where a person granted pre-arrest bail, may abuse the liberty by tampering with witnesses or hampering investigations or might commit the similar or same offence. Also, Anticipatory bail may get cancelled if a case is made out in a petition under section 439 of the Criminal Procedure Code.
The following courts can also recall the granted Anticipatory Bail. It can also direct to arrest of a person who has been granted Pre-arrest bail to be brought under custody on the filing of an application by the complainant or the prosecution.
Anticipatory bail does not protect a person from arrest rather it protects the person from custody. It acts as a relief to secure the liberty and freedom of an individual and it does not exonerate the liability of an accused arising out of the crime, he/she has committed. Filing of FIR is not essential for an application seeking Anticipatory Bail. The person seeking Anticipatory bail must have “sufficient reasons to believe” and not just a mere fear that he might get arrested in the commission of a non-bailable offence.
This Law protects against the clutches of illegal and arbitrary detention and safeguards the public interest at large. The very heart of this law gives due weightage to personal liberty while keeping unreasonable and whimsical liberty at check.
 Black’s Law Dictionary 177 (4th ed.)
Government of India, 41st Law Commission Report,1969, https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-india-report-no-41-code-criminal-procedure1898-vol-1/
Balchand Jain vs State of Madhya Pradesh (1977 AIR 366, 1977 SCR (2) 52).
Harendra Singh v. the State of U.P (2019 SCC OnLine All 4571).
Vinod Kumar v. the State of U.P (2019 SCC OnLine All 4821).
Gurbaksh Singh Sibbia v State of Punjab ((1980) 2 SCC 565).
Samunder Singh v. State of Rajasthan ((1987) 1 SCC 466).
Directorate of Enforcement v. P.V Prabhakar Rao ((1997) 6 SCC 647).
State (CBI) v. Anil Sharma ((1997) 9 SCC 187).
Sidhram Mhetre v. State of Maharshtra (SC (2011) 1 SCC 694).
P Chidambaram v. Directorate of Enforcement (Criminal Appeal No.1340 of 2019 (Supreme Court,05/09/2019)).
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