Introduction

Anticipatory bail, as the name suggests, is bail taken by a person apprehending arrest. It is a preventive relief which was not originally included in the Code. The provisions relating to anticipatory bail were introduced by the Code of Criminal Procedure (Amendment) Act, 2005 after the 41^st Law Commissions Report of September 24, 1969 which asserted the necessity of introducing the provisions of anticipatory bail in the Code of Criminal Procedure enabling the Court of Sessions and the High Court to grand such bail.

The Hon’ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat made it clear that; “The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.”

The Supreme Court in Sushila Aggarwal v. State of NCT of Delhi case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial. The Court made reference of India’s freedom movement claiming that arbitrary arrests, indefinite detentions, and lack of institutional safeguards played an important role in rallying the people to raise the demand for Independence.

Further, the need for such provision arose because now and then prominent persons try to accuse their rivals in false cases to disgrace them by getting them held in jail for some days. Also, if there are reasonable grounds that a person accused of an offence has fewer chances of absconding or misusing his liberty while he is on bail then it will not be logical to make him first submit to custody, remain in prison for some days, and then apply for bail.

The provisions relating to anticipatory bail can be found under section 438 of the Code.

Section 438 of the Code

Section 438 of the Code gives provisions for direction for grant of bail for a person apprehending arrest as:

(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, be 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).

Understanding the provision

This section states that 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 and the court shall provide him anticipatory bail after taking into consideration the following factors, namely-

the nature and gravity of the accusation.
the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
the possibility of the applicant to flee from justice.
where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

This section clearly contemplates two concurrent jurisdictions, namely, High Court and the Court of Sessions. It is left to the person to choose either of them. The provision does not create any bar against moving to High Court without first moving to the Court of Sessions. However, it has been held in Ramesh Chandra v. State of Gujrat (1988),that an application for anticipatory bail should ordinarily be made to the Court of Sessions and not directly to the High Court.

Where the High Court or Court of Session grants interim bail to the applicant then the court forthwith a show cause notice attested with a copy of such order will be served to the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

Conditions for Anticipatory Bail

The High Court or the Court of Sessions, while granting anticipatory bail may impose conditions as mentioned u/s 438(2). The conditions mentioned in that sub-section are only illustrative and the court may impose other conditions, it thinks fit, with a view to strike a balance between the individuals rights to personal freedom and the investigational rights of the police.

The conditions imposed while granting such bail are –

The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.
The applicant should not leave the country without the previous permissions of the court.
The applicant should submit local residential address, native address and contact number to the concerned police station.
The applicant should not make any inducement, threat, promise etc. to any person acquainted with the facts of the case.

The provisions of Section 438 cannot be invoked after the accused has been arrested and after arrest, if he is to be released on bail then he must seek remedy under Section 437 or 439 Cr.P.C. In the case of Bal Chander Jain vs. State of M.P, it was held that “Anticipatory bail” means “bail in anticipation of arrest” and when a competent court grants anticipatory bail, an order of releasing a person at the time of arrest is granted.