When on trial, the purpose of detention is to ensure the attendance of the accused at all court proceedings. If such a presence can be fairly assured without the imprisonment of such a person, depriving such a person of his or her liberty will be unjust whilst the criminal proceedings are pending. Unless proven guilty, it depends on the presumption of innocence. Anticipatory bail is a method of safeguarding a person’s right to personal liberty to shield them from arbitrary detention. This article aims at discussing the important aspects and case laws of Anticipatory bail in India.
The term ‘Anticipatory Bail’ has popped up quite a few times in the year 2020 starting with the Chairman of the Delhi Minorities Commission Mr Zafarul Islam Khan earlier this year till the recent application for anticipatory bail by the famous Indian journalist Mr Arnab Goswami in the month of November. The principle of Anticipatory Bail falls into effect when in cases of cognizable crimes, the accused can rightfully fear arrest. Bail is a legal relief that an individual may be entitled to before his case is disposed of to get temporary freedom. An individual may be able to escape arrest entirely, depending on the gravity of the allegations. However as specified in the Criminal Procedure Code, there are situations in which arrest is made and the accused is set free according to the provisions of the bail. In criminal cases, particularly those involving dowry, anticipatory bail comes as a relief for many accused individuals. In anticipation of detention, it is practically called for.
The expression Anticipatory Bail is not specified in the Criminal Procedure Code, 1973 (Cr.PC), but the first mention of the term can be found in the Report of the 41st Law Commission, 1969, in which the Commission felt the need to provide a provision to protect an accused person or any person who apprehends or suspects that he/she can be arrested for any non-bailable offence. The Parliament, while enacting the 1973 Act, introduced a provision for pre-arrest bail under Section 438 with the heading “Direction for the grant of bail to person apprehending arrest” taking into account the said report and the serious need for the hour.
The root of bail dates back to mediaeval times when King John of England adopted the first known constitution in the year 1215 and was referred to as “Magna Carta” as we know it today. It is possible to trace the origin of the bail from clause 39 of the Magna Carta, the basic translation of which reads as “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgement of his equals or by the law of the land.” It can be understood from a perusal of this provision that a person shall not be restricted or confined unless and until a final judgement is made in consonance with the laws of the land. We may connect the aforementioned provision to the bail provisions as given in Cr.PC with a careful reading and decoding of this clause.
When the Code of Criminal Procedure was revised in 1973, the provision of anticipatory bail under Section 438 was added. In its 41st report, the Law Commission of India recommended that the Anticipatory Bail provision be incorporated. The report read, “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days…Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to submit to custody, remain in prison for some days and then apply for bail.”
Anticipatory Bail in India
Section 438(1) of the Code of Criminal Procedure, 1973 mandates that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence then he may apply to the High Court or the Court of Session for a direction under this section and if the court deems fit then it may direct that in the event of such arrest, he shall be released on bail.
This is a procedural provision which aims to safeguard a person’s freedom. In the case of Gurbaksh Singh Sibbia v. The State of Punjab, a five-judge bench of the Supreme Court distinguished between ordinary bail and anticipatory bail. They ruled that S. o438(1) is to be read in the light of Article 21 of the Constitution which guarantees protection of life and personal liberty. It was perceived by the Hon’ble Court, “It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.” The court added that the power to grant anticipatory bail should be ‘cast in wide terms’ and should not be evaded through narrow judicial interpretation.
Empowerment of the Courts to grant Anticipatory Bail
In India, the High Courts and Court of Sessions are authorized to make an order granting anticipatory bail if the individual apprehends arrest. In general, unless there are exceptional circumstances for filing the same in the High Court, the applicant must first approach the Court of Sessions to move an application for Anticipatory Bail. The Application for Anticipatory Bail shall not be maintainable if the claimant has already been convicted on the same charge or has surrendered voluntarily before the court of trial on the same charge. The applicant is entitled to approach the courts within the jurisdiction of which his arrest is apprehended. The fact that the alleged crime was committed outside the jurisdiction of such courts is insignificant. If the courts do not have the requisite territorial jurisdiction, they may, after considering the facts and circumstances involved, still grant Anticipatory Bail for a short period with sufficient protections to approach the Court having jurisdiction to entertain such an application.
Circumstances for granting of Anticipatory Bail
In suitable cases, anticipatory bail is normally exercised sparingly, with due care and caution. Anticipatory bail can be issued in a few circumstances:
- There is a special case which would imply that there are ample reasons for assuming that the claimant could be arrested on erroneous grounds.
- The charges were made with a deceptive motive or to cause injury/humiliation to the claimant and arresting him in that sense.
- The arguments against the claimant are either ambiguous or generic in nature.
- The name of the accused is not listed in the First Report on Information
- The applicant assures the Court granting Anticipatory Bail that he is from a reputable background, has deep roots in society and is unlikely to abscond from or escape the Court’s proceedings or obstruct the investigation under any circumstance.
- A complainant is a powerful entity against the defendant who is a weak person or whether a case is brought against a political rival.
Factors to be taken into consideration
A comprehensive and exhaustive list of considerations has been drawn up by the Hon’ble Supreme Court, building on those in Section 438(1), which are relevant to deciding whether to grant anticipatory bail. They are as follows: –
- Before making the arrest, the essence and seriousness of the charge and the exact position of the accused must be properly comprehended.
- The applicant’s record involves whether the accused was previously incarcerated on conviction by a judge for any cognizable crime.
- The applicant’s desire to hide from justice.
- The likelihood of the convicted performing similar or other crimes.
- Where the charges are made purely to harm or humiliate the claimant by arresting him or her.
- Effect of the grant of anticipatory bail, particularly in cases of high severity that involve a large number of people.
- The court must also consider the exact position of the accused in the case. In such cases in which the allegations were made u/s 34 and 149 of the IPC, the responsibility of the court increases tremendously.
- A balance must be preserved between two considerations when hearing the pleadings for the grant of anticipatory bail. Next, the courts ought to ensure that the grant of anticipatory bail does not come at the detriment of the matter at hand being openly, reasonably and thoroughly investigated. The courts must ensure that there is no abuse, humiliation and unfair imprisonment of the accused.
- The court should acknowledge the complainant’s reasonable apprehension of tampering with the pieces of evidence and witnesses or apprehension of peril to the complainant.
- The utmost seriousness of the case is often taken into account and it is only the component of authenticity that must be taken into account when the issue is about the grant of bail and if there is any doubt as to the authenticity of the prosecution, the accused is entitled to a bail order in the usual course of events. 
Conditions for the grant of Anticipatory Bail as mentioned u/s 438(2)
The High Court and the Court of Session to which the request for anticipatory bail is submitted may impose such conditions as may be required by the case. The requirements referred to in Section 438(2) are merely illustrative and not exhaustive. When granting anticipatory bail, the Court must bear in mind that the investigation has not yet been concluded and that it is the responsibility of the Court to ensure that the investigation is not in any way obstructed or interfered with.
However, the Court would be unable to enforce a requirement other than that which is warranted by law. Consequently, no direction can be given to the effect that the complainant should be released on bail if arrested, provided that the alleged stolen property is presented before the investigating officer. The High Court can set aside such order by reviewing it or by exercising its inherent powers.
The Court has the power to put some conditions and restrictions. These are: –
- A condition that the person shall make himself available for interrogation by a police officer as and when required.
- 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 to dissuade him from disclosing such facts to the Court or any police officer.
- A condition that the person shall not leave India without the previous permission of the Court.
- Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
Furthermore, Section 438(3) states that if an application under this provision is permitted, and if such a person is subsequently arrested without a warrant, he should immediately be released on bail. If the magistrate acknowledges and issues a warrant against such a person, then such a warrant would be a bailable warrant.
Refusal of Anticipatory Bail
There could be a few possible circumstances where Anticipatory Bail may be refused. They are:
- The opportunity for the claimant to abscond if cognizance is taken by the trial court or that the trial court has issued a warrant of arrest.
- Where it is possible to make out the prima facie case with which the claimant has been charged.
- The claimant has already been convicted for any cognizable offence on conviction.
- Where it is possible to make an argument that the claimant will manipulate the investigation to his benefit.
- 5. If a case is about a fair claim to obtain material for incrimination.
Justice V.S. Malimath Committee Report, 2003
It is a well-known fact that most Indian laws, inclusive of the criminal laws, are based on British Law which was brought to India during the British Raj but the perception has now changed from what it was before. Earlier the accused always remained innocent because most of the time it was British personnel in the place of the accused and law aimed at protecting him. A system of summer vacations for the courts also used to be in practice. But in a country like India, with a lot of population could not afford to have such a model. Thus, a committee under the chairmanship of Dr Justice V.S. Malimath was set up during the year 2000 to propose reforms in the criminal justice system. The committee put forth recommendations on various issues including speedy justice, right to silence, rights of the accused, adultery, rape, bigamy etc.
The report commented on bail stating that a person accused of a bailable offence is entitled to bail as a matter of right. The main purpose behind the denial of bail is that the person can help the police during the investigation and not tamper evidence, threaten the witness or impede the course of justice. A person seeking bail must furnish a bond of necessary value before he is released. He is granted bail on the condition that he presents himself as and when required by the investigating authority and not leave the country till the trial is complete. A person who has reason to believe that he may be arrested in future for a non-bailable offence may apply to the competent court for the grant of anticipatory bail. The Court considering the circumstances of the case may grant anticipatory bail so that in the event of arrest, he shall be released on bail.
Important Case Laws regarding Anticipatory Bail in India
- Sushila Agarwal v. State of Delhi
In this particular case, two main questions were posed to the five-judge bench of the Apex Court. These were:
- Whether the protection granted to a person under Section 438 of Cr.PC should be limited to a fixed period to enable the person to surrender before the trial court and seek regular bail &
- Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to court.
The Constitutional Bench of the apex court answered the first question by holding that no time limit may be set by the court granting Anticipatory Bail. The bench unanimously held that “the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.”
The court answered the second issues by holding that “The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”
When addressing the second question, the Supreme Court was careful in granting the court discretionary powers to limit the tenure of the Anticipatory Bail in the event of special or peculiar facts.
The following guidelines were issued by the bench on the grant of anticipatory bail-
- Anticipatory bail applications should be based on specific evidence relating to a particular allegation, not ambiguous or generic claims.
- The court should send a notice to the public prosecutor to obtain evidence, depending on the severity of the threat of arrest.
- Nothing in the Cr. PC compels or compels a court to enforce conditions prohibiting the issuance of anticipatory bail.
- The need to enforce conditions will have to be judged on a case-to-case basis during the grant of anticipatory bail.
- Such special or other restrictive conditions should be enforced where the case or cases require, but in all cases, they should not be imposed regularly.
- The magnitude and essence of the alleged offence involved, the position of the defendant, etc., should direct the court in determining whether or not to grant anticipatory bail at its discretion.
- Anticipatory bail issued can continue (depending on the conduct and behaviour of the accused) until the conclusion of the trial after filing the charge sheet.
- re Digendra Sarkar
It has been held that anticipatory bail in Section 438 of the Code applies even when there is no ‘First Information Report’ and no case has been recorded against an individual for the commission of a non-bailable offence. Thus, the filing of the First Information Report is not a prerequisite of the anticipatory bail application and a person who has reason to believe that he or she may be arrested on charges of a non-bailable offence may, in such a case, appear before the High Court or the Court of Session.
- Badresh Bipinbai Seth v. State of Gujarat
The Apex Court opined 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 a liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that 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.”
- Arnesh Kumar v. State of Bihar
When ruling on an appeal for anticipatory bail for offences u/s 498A, the Hon’ble Supreme Court found it significant to note that a mandatory notice u/s 41A should be sent to the accused if he is booked for a sentence of up to 7 years for an offence.
- Onkar Nath Asrawal v. State
The Allahabad High Court put an end to the presumption that application for anticipatory bail to be applied first in the court of sessions and only then in the High Court. The court cleared that no such sequence is required.
One of the most hotly discussed topics in the Indian justice system is anticipatory bail. While it is claimed, on the one hand, to be the conservator of an individual’s fundamental right to life and liberty, it is often seen as a way of consuming judicial time. In a nation that is still dealing with serious cases, the stakes appear high.
In India, arbitrary and motivated arrests are an unfortunate fact and are only growing. It would therefore not be prudent to strike down the provision of anticipatory bail, as doing so would be counterproductive to the right to liberty guaranteed. What is vital is that a balance between an individual’s rights and the need to uphold law and order in society is always upheld. The courts should wisely exercise their discretion, bearing in mind the principles of natural justice, in ways that are just and equitable.
Frequently Asked Questions
- What are the pre-requisites of granting an anticipatory bail?
Ans: There are primarily 2 prerequisites for filing to the proper court for Anticipatory Bail.
- It should be a non-bailable offence against which bail is requested.
- There should be a grave concern that the accused will be arrested for such a non-bailable offence by the police authorities.
2. Is it mandatory for a person to be arrested by the police only because his anticipatory bail has been refused?
Ans: In the case of M.C Abraham and Anr v. State of Maharashtra and Anr, the Hon’ble Supreme Court held that the police do not need to arrest a person simply because his/her Anticipatory Bail was refused.
- The concept of anticipatory bail is in consonance with which fundamental right?
- Does a time limit exist for anticipatory bail?
- What are the conditions for the grant of anticipatory bail?
- Where did the concept of anticipatory bail emanate from?
- Under which circumstances can the anticipatory bail be refused?
 Code of Criminal Procedure, 1973 § 438 cl. 1.
 Gurbaksh Singh Sibbia v. The State of Punjab AIR 1980 SC 1632.
 supra note 4.
 Code of Criminal Procedure, 1973 § 438 cl. 2
 Sushila Agarwal v. State (NCT of Delhi) 2020 SCC OnLine SC 98.
 In Re: Digendra Sarkar 1982 Crl. L.J. 2197.
 Badresh Bipinbai Seth v. State of Gujarat (2016) 1 SCC 152.
 Arnesh Kumar v. State of Bihar (2014) 8 SC C 273.
 Onkar Nath Asrawal v. State 1976 Cri L.J. 1142.
 M.C Abraham and Anr v. State of Maharashtra and Anr (2003) 2 SCC 649.