Anticipatory Bail (Section 438 CrPC)- Meaning, scope, applicability and historic case laws

Anticipatory Bail (Section 438 CrPC)- Meaning, scope, applicability, and historic case laws

Anticipatory bail is the power of High Courts and the Courts of Sessions to grant bail to an accused even before he/she is arrested. In a sense, it could be said that the term ‘anticipatory bail’ is not accurate because it is not really a ‘bail’ given to a person already in custody, but an order to release him in the event of his arrest by the police. This provision allows an accused to preempt an arrest that he apprehends in the near future. Anticipatory bail is governed by section 438 of the CrPC.

A need was felt for a law of this nature to protect innocent persons from vindictive suits that seek to implicate them in trumped-up charges and ruin their reputation and career. Criminal jurisprudence assumes a person to be innocent till proven otherwise. Consequently, the purpose of an arrest is not to punish the accused but rather to ensure that he does not tamper with evidence, intimidate the witnesses, or abscond to escape the hands of the law. The 41st report of the Law Commission prescribed that if a court is convinced that the accused person is not likely to indulge in any of the foregoing, then it ought not to order his continued detention till he is convicted. 

What follow are some of the factors that the law prescribes for High Courts and Sessions Courts to consider while granting anticipatory bail

1. Before granting anticipatory bail, the court looks into the nature and gravity of the accusation, and whether the charges seem genuine or fabricated. If there is prima facie a strong case against the accused, then the courts feel less inclined to grant anticipatory bail.

2. The antecedents of the accused play a very important role in the outcome of a bail application. If he is a history-sheeter, a habitual offender, or has undergone imprisonment or has been convicted in the past for a cognizable offense then his chances of getting an anticipatory bail are generally very low. 

3. If the court has a feeling that the applicant might try to abscond and flee from the clutches of the law then he is less likely to secure an anticipatory bail.

4. If the charges are of a general and omnibus nature, and the judge gets a sense that the accused person has been implicated to bring humiliation, or damage his reputation and social standing then his chances of getting bail are better.

When a court decides to grant anticipatory bail to an accused person, it may, at its discretion, impose certain conditions on him. These are as follows:

1. He must make himself available for interrogation by the police whenever required.

2. The accused person should not in any manner try to threaten or make inducements to any of the witnesses of the case.

3. He may not leave the country without the permission of the court.

4. Such other conditions as the court may choose to impose.

Since the power to grant anticipatory bail entails an intuitive comprehension of the facts of the case without appraising the evidence and witnesses at length, only higher courts have been entrusted with this responsibility. 

Though both, the High Courts and Courts of Session have been entrusted with the power to grant anticipatory bail, in general, a High Court is reluctant to hear a case under this provision unless a Court of Sessions was approached first. 

There appears to be some incertitude around the question of which court ought to be approached first.

In Balan V State of Kerala, 2003, the Kerala High Court held that an accused may as well approach the High Court before the Court of Sessions and he is not expected or required to make out an ‘exceptional’ case for the High Court to take up his case first. 

In Jagannath v State of Maharashtra, 1981, the Bombay High Court held that rejection of a petition for anticipatory bail by a lower court does not disqualify the accused from approaching the High Court for bail on similar facts and over similar grounds. In contrast to this, in Zubair Ahamad Bhat v State of J & K, 1990 it was held that if anticipatory bail is rejected by the Sessions Court, then the accused person cannot approach the High Court on similar grounds. In Devidas Raghu Naik v State of Maharashtra 1989, Bombay High Court said that if an accused approaches the High Court first, and his bail is rejected, then he cannot move to a Court of Sessions for anticipatory bail in the same case. 

Another question around which there seems to be some confusion is regarding the court that has jurisdiction to hear a petition for anticipatory bail- should the accused person apply to a court that has jurisdiction over the locality where the crime was committed or should he approach the court that has jurisdiction over the locality in which he is apprehending arrest? In Jodha Ram v State of Rajasthan, 1994, the High Court of Rajasthan ruled that the accused may approach the court that has jurisdiction over the locality in which he is apprehending arrest, even though the FIR may have been lodged in some other jurisdiction. However, in Neela J Shah v State of Gujarat, 1998, the Supreme Court held the opposite of this.

Being, in essence, a provision to avoid arrest, section 438 is applicable only to non-bailable offenses. However, this should not be taken to mean that the offense must also be a cognizable one. In fact, even the lodging of an FIR is not a necessary prerequisite for a person to move the court under this provision, so long as he is able to convince the court that there is a reasonable and well-founded apprehension that he is going to be arrested in the near future. It might be added here though that this section is only meant to protect an accused person against an immediate and manifest threat of arrest. In T N Kunhiraman v S I of Police, 1985, the court observed that this section cannot be used to obtain blanket protection from arrest against imagined accusations that the applicant fears the prosecution might level against him at some remote future date. 

Gurbaksh Singh Sibbia v State, 1978, a Punjab laid down several clarifications regarding how anticipatory bail petitions are to be treated by courts:

1. The judgment drew a straight link between the fundamental right to life and liberty enshrined in article 21 and the institution of anticipatory bail. An accused, being innocent till proven guilty, should not be kept in custody unless there is a reasonable ground to presume that he is guilty. 

2. This judgment again reiterated that the filing of an FIR is not a necessary precondition for a person to move the court for anticipatory bail. 

3. Gurbaksh Singh judgment also clarified that the granting of an anticipatory bail notwithstanding, the police shall have full right to carry on its investigation regarding the case. 

4. Powers exercised by Courts of Sessions and High Courts under this section are discretionary in nature. Judges look into the prima facie evidence and try to figure out whether there is a strong case against the accused. The summary nature of the evaluation of the case that is done at this stage, should not lead courts into believing that this is an extraordinary power that ought to be exercised sparingly. This is not an exceptional power meant to be exercised in rare cases, but a matter of procedure in which a judge employs his discretion and grants bail in the light of concrete facts and circumstances of particular cases.

Salauddin Abdul Samad Sheikh v State of Maharashtra, 1996 had laid down that initially anticipatory bail should be given for a limited period of time only, however, lately, courts have begun to award bail for the entire duration of the trial.

If the police or the investigating agency involved is able to convince the court that police custody as per under 167(2) CrPC is necessary for proper investigation, or that there is a strong likelihood of the discovery of incriminating material from the offender (as per section 27, Evidence Act), then the court concerned may refuse to grant anticipatory bail. 

There are certain categories of cases in which courts are generally less inclined to grant anticipatory bail-

1. If the punishment for the charges against the accused is either death or imprisonment for life then courts are more circumspect in granting anticipatory bail. This is so because, if the person is guilty, then faced with the prospect of death or a lifetime in jail, he might consider absconding for good. 

2. In cases of political and economic crimes involving politicians and officials on the highest rungs of society, courts feel less inclined to grant anticipatory bail, as the accused in such cases are persons of considerable clout and power, likely to use their time outside the jail in inducing and threatening witnesses and investigating officers.

3. In Samundar Singh v State of Rajasthan, 1987, the Supreme Court advised caution to High Courts and Courts of Sessions in granting relief to persons accused of dowry death.

In a hearing to secure anticipatory bail the accused must establish, based on the material before the court, that the complainant has acted mala fide. The evidence that the accused is being framed must be substantial enough to satisfy the court. A mere allegation that the case is motivated is not enough.  

Ordinarily, courts do not grant anticipatory bail without issuing a notice to the prosecution and allowing it to oppose the application. In some circumstances, the accused person is granted temporary relief subject to the condition that the order would be made final after hearing the public prosecutor's arguments on the next date. And, if and when a final order for the grant of anticipatory bail is passed, the court issuing it must record the reasons for doing so in writing. 

An accused is well within his right to apply for anticipatory bail after the issue of process by the trial court, or the issuance of summons to appear before a court. However, an accused cannot approach a court for anticipatory bail after he is arrested. Now, he must proceed under the provisions prescribed for a regular bail (section 437). Though it may be added here that in Shamin Ahmad v State, 2003, it was held that an accused can apply for anticipatory bail even after the filing of the charge sheet or the issuance of a warrant for arrest. 

Section 438 does not apply to juveniles (a person who has not completed eighteen years of age). Recently, in Piyush v State of Haryana (2021), the Punjab and Haryana high court clarified that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a complete code in itself, and hence provisions of CrPC do not apply to it. Section 12 of the Juvenile Justice (Care and Protection of Children) Act makes it plain that a child accused of a non-bailable offense shall be released on bail with or without surety or placed under the supervision of a probation officer. Therefore, there is no reason for him/her to apply for bail under section 438 CrPC.