Recently, an MLA has been granted pre-arrest bail or Anticipatory bail by the High Court; a decision challenged in Supreme Court by the state Lokayukta.

Introduction

In the context of a non-bailable offence committed by ‘A’, he can take advantage of the bail provisions available under Chapter XXXIII of the Code of Criminal Procedure, 1973, in the Indian criminal law system. ‘A’ has three types of bail options: regular, interim, and anticipatory bail. If ‘A’ wishes to seek bail before arrest, he can opt for anticipatory bail, which is one of the significant defenses of personal liberty defined under Section 438 of the Code of Criminal Procedure.

Anticipatory bail allows a person to approach the Court of Session or the High Court if they believe they might face arrest on non-bailable charges. The court has discretionary powers to grant anticipatory bail, making it a form of pre-arrest bail. Section 438 is a procedural provision that safeguards the right to personal liberty and presumption of innocence. This article provides a comprehensive analysis of anticipatory bail in Indian criminal law, exploring recent developments and critical examination of court judgments on the matter.

Scope of anticipatory bail under Section 438 CrPC

Section 438 of the Code of Criminal Procedure primarily deals with pre-arrest bail for non-bailable offences. When a person anticipates arrest, they can apply to the Court of Session or High Court seeking a direction to be released on bail. The power to grant anticipatory bail is limited to the higher courts, as the lower courts lack this authority. Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005 outlines the factors that the court considers before deciding on granting anticipatory bail.

1. The nature and gravity of the accusations.
2. The charge levelled against the applicant intends to harm or humiliate him by having him detained.
3. The applicant’s record, including whether he has previously been imprisoned or sentenced by a court for any cognizable offence.
4. The potential of the applicant to defy justice.

If the High Court or Court of Session has not issued an interim order or has rejected the application for anticipatory bail, the officer in charge of a police station may arrest the applicant without a warrant, based on the accusations mentioned in the application. In case the court grants an interim order, the applicant must provide a seven-day notice to the public prosecutor, and the application is only approved or rejected after considering this notice.

According to Section 438(1B), the applicant for anticipatory bail is obligated to attend court proceedings when the court decides to hear the case and conducts a final hearing of the application or passes a final order. If the public prosecutor requests the applicant’s presence in court for the interest of justice, the applicant must appear in court as per the court’s determination.

Development of law on anticipatory bail in India

Anticipatory bail was not originally provided for in the Code of Criminal Procedure (1898). However, it evolved through judicial interpretations of Sections 496, 497, and 498 of the Code of Criminal Procedure, 1898. The idea of anticipatory bail was first mentioned in the 41st Law Commission Report of 1969. The Commission observed that granting anticipatory bail was necessary to protect individuals from false cases filed by influential persons for various motives, especially in the context of increasing political rivalries.

Section 497A was inserted after the 1969 report, empowering the High Court or the Court of Session to grant anticipatory bail for a person apprehended for a non-bailable offence. The Law Commission supported the provision, but with the caveat that such power should be exercised sparingly and after giving notice to the public prosecutor. The provision for anticipatory bail was eventually incorporated in Section 438 of the Code of Criminal Procedure, 1973, based on the modified Section 447 of the Code of Criminal Procedure Bill, 1970.

Several landmark cases contributed to the establishment of principles related to anticipatory bail. In the case of Balachand v. State of Madhya Pradesh (1976), the Supreme Court imposed two conditions for granting anticipatory bail: the prosecution’s right to object to the release application and the court’s satisfaction that there were reasonable grounds to believe that the accused was not guilty of any punishable offence. These conditions were implied in Section 438, following Section 437(1), to prevent misuse of anticipatory bail provisions.

In summary, anticipatory bail evolved from judicial interpretations, and its introduction aimed to safeguard personal liberties and protect individuals from false cases. Key cases and Law Commission recommendations have shaped the provisions for anticipatory bail under the Indian criminal law system.

Breakdown of the meaning of anticipatory bail under Section 438 CrPC 

In accordance with Section 438, a person who anticipates being arrested may be granted anticipatory bail for non-bailable offences prior to a First Information Report (FIR) being lodged. When an individual is arrested, they must apply for regular bail or interim bail, depending on the situation. Anticipatory bail is the direction to release a person on bail even before arrest.

Conditions that may be imposed by the court while granting anticipatory bail

1. That individual makes himself accessible for questioning by a police officer when required.
2. That individual must provide the local police station with their current residence address, native address, and phone number.
3. That the individual will not offer any inducement, threat, or assurance to any person familiar with the facts of the case, directly or indirectly, to prevent him from disclosing such information to the court or any police officer.
4. That the individual will not leave the territory of India without prior authorization from the court.
5. Any other additional condition under Section 437(3)  may be imposed as if the bail was granted under that Section.

In the landmark judgment of Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Supreme Court held that for an individual to apply for anticipatory bail, there must be reasonable grounds to apprehend the arrest. The court clarified that “reason to believe” entails establishing the apprehension on rational grounds and not merely based on a mere “belief” or “fear”.

Power vested to the courts for granting bail for non-bailable offences under Section 437 CrPC

Section 437 of the Code of Criminal Procedure deals with the circumstances under which bail may be granted for non-bailable offences. An accused or suspected person charged with a non-bailable offence may be granted bail under certain conditions, including not being charged with an offence punishable by death or life imprisonment. Bail may also be granted to individuals under the age of sixteen, women, sick, or infirm persons. Furthermore, if there are reasonable grounds, the court may release the accused on bail for other justifiable reasons.

The court may impose specific conditions to ensure compliance, and in case of undue delay in trial, the accused may be released on bail. If the court finds reasonable grounds to believe in the accused’s innocence before judgment, they may be released on bail. The court must record the exceptional reasons for granting bail, and it can also order the arrest and confinement of the person released on bail.

Cancellation of anticipatory bail under Section 439 CrPC

Section 439 of the Code of Criminal Procedure grants the High Court or Court of Session extraordinary powers regarding bail. The court may order the arrest and custody of any individual who has been granted bail under Section 439(2). It can release an accused in custody on bail if the nature of the offence falls under Section 437(3) or impose any necessary conditions for the purposes mentioned in that subsection.

Additionally, the court has the authority to lift or modify any restrictions imposed by a magistrate on an accused’s bail, provided it notifies the Public Prosecutor and provides written reasons for doing so.

In the recent case of Charu Soneja v. State (Nct Of Delhi) (2022), the Delhi High Court clarified the distinction between dismissing a bail application and canceling bail. The court stated that it has the discretion to dismiss a bail order for non-bailable offences based on the nature of the offence and the possibility of the accused misusing their liberty if granted bail.

On the other hand, the court can cancel previously granted bail, which rescinds the liberty given to the accused. The court emphasized that the power under Section 439(2) should be exercised with discretion, without delving into the merits of the original bail decision, and only considering the subsequent conduct of the accused. The exercise of this power requires caution, similar to the High Court’s inherent powers under Section 482 of the Code of Criminal Procedure.

Circumstances when anticipatory bail cannot be filed

1. In the case of Ramesh v. State (2022), the Karnataka High Court ruled that an accused person who appears in court, whether through a lawyer or in person, cannot seek anticipatory bail.
2. An individual who commits an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot apply for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 as per the provision of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, incorporated Section 18A, which clarified that it is not necessary to conduct a preliminary investigation before filing a First Information Report against a person, and the provision of Section 438 shall not be applicable under this Act unless any court passes any judgement, order, or direction. However, the Chhattisgarh High Court in the case of Jawed Khan v. the State of Chhattisgarh (2022) ruled that if the offence seems to be an abuse of the law, anticipatory bail can be granted. The Kerala High Court held in the case of K. M. Basheer v. Rajani K.T & Ors and Connected Cases (2022), that only the Special Court or the Exclusive Special Court established under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, can entertain applications for anticipatory bail. It further ruled that the High Court lacks both concurrent and original jurisdiction under Sections 438 and 482 of the Criminal Procedure Code to grant bail for offences under the aforementioned Act. The High Court’s appeal authority under Section 14A will apply to the decision of whether to grant or deny anticipatory bail.
3. The Supreme Court ruled in Directorate of Enforcement v. Ashok Kumar Jain (1998) that an accused person is not entitled to anticipatory bail when charged with an economic offence.
4. Except in cases when the court is immediately persuaded that the charge against the defendant appears to be false or groundless, Section 438 discretion cannot be applied to offences with the punishment of death or life imprisonment.

How is anticipatory bail related to Article 21 of the Indian Constitution

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It safeguards an individual’s freedom and liberty against unjustified detention and arrest, regardless of whether the person is an “accused,” thus upholding the principle of innocence until proven guilty.

Anticipatory bail is a statutory right. Rights that are legislated, ordained, or bestowed by legislation are known as statutory rights. Anticipatory bail is the obligation to uphold the fundamental right to personal liberty in the event of false charges while adhering to the legal concept of “innocent until proven guilty”. The concept of anticipatory bail is one of the most significant defences of personal liberty. 

In the case of Sangeeta Bhatia v. State Of Nct Of Delhi (2022), the Delhi High Court ruled that anticipatory bail has its roots in Article 21 of the Indian Constitution and that Section 438 of the Criminal Procedure Code establishes it as a statutory right.

In the case of Tarun Jain v. Directorate General of GST Intelligence DGGI (2021), the Delhi High Court determined that anticipatory bail is a statutory right under Article 21 right to life and personal liberty.

In the case of Bhadresh Bipinbhai Sheth v. State Of Gujarat & Anr (2015), the Supreme Court determined that the provision of anticipatory bail is included in Section 438 of the Code of Criminal Procedure and is conceptualised under Article 21 of the Constitution, which pertains to personal liberty. Thus, Section 438 of the Code must be interpreted broadly in accordance with Article 21 of the Constitution.

In the case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble Supreme Court ruled that the legality of Section 438 must be assessed by the standard of fairness, which is inherent in Article 21.

Important case laws 

In the case of Ankit Bharti v. State of Uttar Pradesh (2020), the Allahabad High Court held that although the High Court and Court of Session have concurrent authority, it is conventional to approach the Court of Session first and subsequently the High Court if the application is denied. Applications can be submitted directly to the High Court when the reasoning is solid, logical, and compelling.

In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court ruled that no time restriction may be placed while granting anticipatory bail and that it can last till the completion of the trial.

In the case of Subrata Roy Sahara v. Pramod Kumar Saini (2022), the Supreme Court ruled that inquiries in anticipatory bail applications must be limited to the applicant’s case and relevant information. It cannot be impleaded against third parties as it would be in violation of Order 1 Rule 10 of the Code of Civil Procedure, 1908.

Recent developments around anticipatory bail

1. A Gujarat High Court Bench in the case of Shree Vikas Co.Op. Bank Ltd. v. State Of Gujarat (2022) outlined the law pertaining to the revocation of anticipatory bail has been presented in an illustrative and not comprehensive manner. The Court ruled that bail can be revoked if

1. The accused abuses his liberty by engaging in similar criminal activity.
2. Hampers the process of the investigation.
3. Attempts to interlope with evidence or witnesses.
4. Threatens witnesses or engages in similar activities that would impede a smooth investigation.
5. There is a risk of him fleeing to another country, or 
6. Attempts to make himself scarce.

2. The Gujarat High Court asserted in the case of Mansi Jimit Sanghavi v. State of Gujarat (2022) that a person facing arrest can seek “transit anticipatory bail” in order to obtain time to approach the competent court with territorial jurisdiction in the matter, even though no FIR has been lodged.
3. The Allahabad High Court ruled in the case of Manish Yadav v. State of Uttar Pradesh (2022) that an anticipatory bail plea is permissible if a proclamation under Sections 82 and Section 83 of the Code of Criminal Procedure, 1973 is made against the accused after the plea is filed.
4. The Punjab and Haryana High Court stated in the case of Deen Mohd. v. State of Haryana (2022) that it is well-established law where a process is “ex debito justitiae,” which means “by reason of an obligation of justice”, the Court can dismiss an anticipatory bail based only on the insinuation that the defendant attempted to deceive the Court by withholding information.
5. In the case of Vijay Babu v. State of Kerala & Anr (2022), the Kerala High Court ruled that anticipatory bail applications can be allowed even if the accused is in another country.

Conclusion 

The Hon’ble Supreme Court held in the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (1977) that “Bail is a rule and jail is an exception“. Anticipatory bail has been used as a defence against unfair detention for persons wrongfully accused of crimes. The power of anticipatory bail must be exercised in exceptional instances when the courts consider the petitioner is being falsely charged. Furthermore, in addition to safeguarding the interests of the accused, anticipatory bail as a legal measure forbids the accused from abusing his freedom or evading justice.

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