Anticipatory Bail

What is Anticipatory Bail?

Anticipatory bail refers, as the name suggests, is . It is important to note here, that anticipatory bail is merely a statutory right. Thus, it cannot be considered as something that is permissible to be claimed as a matter of right. Further, under anticipatory bail, one can only seek protection by way of release in respect of the specific reason in connection with which anticipatory bail was sought in the first place.

The expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest.  It is submitted that when a competent court grants “anticipatory bail”, it makes an order that in the event of arrest, a person shall be released on bail.   It is submitted that there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.

Statutory Provisions pertaining to Anticipatory Bail

Section 438, Code of Criminal Procedure (Section 482, BNSS)

Sub-section 1 provides "when any person having a reason to believe that he may get arrested for a non-bailable offence then he can apply for anticipatory bail to the High Court or the Court of session and it is at the discretion of the Court that whether they want to give the bail or not".

Sub-section 1(A) provides that, if the court has prima facie found any merits in the application, and is not rejecting the relief for anticipatory bail then the application under this section cannot be disposed of until the Public Prosecutor is heard. Thus, a 7 days' notice shall be issued to the Public Prosecutor and the Superintendant of Police (SP) to give reasonable time to the prosecutor to defend the said application before it is finally heard.

Sub-Section 1(B) provides that the presence of the applicant is obligatory and compulsory if the public prosecutor makes an application before the court that his presence is required during the final hearing of the application or at the time of passing the final order, and the court also finds it necessary then it will allow the same.

The Section also provides for the application of certain conditions in the context of anticipatory bail, wherein, on the granting of anticipatory bail as mentioned in the previous paragraph, the Court in question may make such conditions as is deemed fit. Such conditions may include for example:

1. That the person in question must make himself available for interrogation by a police officer when it may be required.
2. That the person in question must not leave India, unless with the permission of the Court as previously obtained.
3. That the person in question must not, either indirectly or directly, make any threat, inducement, or promise to a person acquainted with the case’s facts in a manner as to dissuade such person from disclosing the facts to the Court or to any police officer.

Any appropriate Court, within the jurisdiction of whom the arrest has taken place, or the arrest is being apprehended, will be considered as having the appropriate jurisdiction in respect of granting anticipatory bail. The appropriate court would thus be the Court of Session or High Court which has jurisdiction over the place of apprehension of arrest by the applicant. It does not matter if the FIR has been registered at a place that falls within the jurisdiction of some other High Court.

The High Court or Court of Session has the power to provide 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.

The Constitution Bench in  Sushila Aggarwal has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and   circumstances   so   warranted, the Court   could   impose special conditions, including limiting the relief to a certain period.

In the case of Arnesh Kumar v. State of Bihar the Supreme Court held that while deciding an anticipatory bail application for offences u/s 498A i.e cruelty on women by her husband or any relative, it necessary that there should be a mandatory notice to the accused to appear before the police officer u/s 41A if he is booked for offence with punishment up to 7 years.

Case Laws on Anticipatory Bail

Hon’ble Apex Court in State of M.P vs. Pradeep Sharma held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”. In Gurbaksh Singh Sibbia v. State of Punjab, the Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.

Rukmani Mahato v. State of Jharkhand

The Hon’ble Supreme Court in this case held that no regular bail shall be granted when Interim Anticipatory Bail is granted by higher courts and matter is pending. The Court held that: “Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior Court meaningless,”.

Gurbaksh Singh Sibbia v. State of Punjab

The Supreme Court in this case held that, “The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that 'some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.”

The SC bench also held that if an application for anticipatory bail is made to the High Court or the Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the CrPC. Further, the top court said that “anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.” The Verdict also clarified that the provisions of Section 438 could not be invoked after the arrest of the accused. It added, “The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”

In this case, the SC bench also illustrated a brief difference between ordinary bail and anticipatory bail. It said “The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences.  An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest  order of bail, it  is a  pre-arrest  legal process which  directs that if the person in whose favor it is issued  is  thereafter  arrested  on  the  accusation  in respect of  which the  direction  is  issued,  he  shall  be released on  bail.” Overall, The Supreme Court’s decision in this case elaborates the concept of anticipatory bail in an efficient manner which was further considered by the Courts in several judgments regarding bail.

Savitri Agarwal & Ors vs. State of Maharashtra & Anr

In this case, the Apex Court cautioned the High Courts against passing any blanket order of protection while granting bail. The Apex Court made it clear that when a High Court passes orders granting anticipatory bail, it should mention the specific offences for which the bail is granted. It was also laid down in the judgement that the High Courts should also impose conditions that can ensure uninterrupted police investigations.

Neeharika Infrastructure Pvt. Ltd. vs. the State of Maharashtra

This is one of the important judgements when it comes to blanket bail. In this case, the Hon’ble Supreme Court had directed the High Courts to abstain from passing orders, refraining the investigative agencies from arresting or “no coercive steps to be taken” pending the investigation as it would prevent the investigating agencies from carrying on their duties laid down by the law. The Hon’ble Supreme Court stated that the High Courts can’t pass such orders, which act as a blanket order protecting an accused in cognizable offences and thus, defeating the investigation powers of the investigative agencies. This is also because granting such interim protection from arrest would then amount to an order of anticipatory bail, which would surpass the conditions prescribed under CrPC’s Section 438.  

Regional Variations

Via amendment to the Code of Criminal Procedure, various States have their own particularities corresponding to the concept of anticipatory bail.

Uttar Pradesh

Anticipatory Bail was revived by the UP State's 2018 Amendment Act (with effect from June 6, 2019). The provision was removed by way of the CrPC (Uttar Pradesh Amendment) Act 1976, during the Emergency period. The bench of Justice Subhash Vidyarthi added that the 2018 Amendment Act merely restores the benefit of anticipatory bail to persons apprehending arrest, which was available to the persons in the State of UP till 1976 and hence, this being a beneficial legislation, cannot be restricted in its operation to offences committed after enactment of Act in 2019.

A recent (2022) amendment denied the granting of anticipatory bail in respect of those individuals who have been booked under the Protection of Children from Sexual Offences Act (the POCSO) Act, with the intention behind this being to increase the deterrent effect in respect of these offences.

Maharashtra

In a key judgment, the Bombay High Court laid down certain guidelines pertaining to anticipatory bail in consonance with the provisions of the CrPC as applicable to Maharashtra (i.e. as amended by Maharashtra). The guidelines included the following points, aiming at clarifying some discrepancies concerning the rules as specifically applicable to Maharashtra:

1. That the prosecutor must state cogen reasons when filing the application under Section 438(4) while seeking the accused’s obligatory presence before the Sessions Court upon the time of the final hearing of the Anticipatory Bail Application
2. That the Sessions Court must pass a reasoned order in regard to the presence of the accused being necessary, with regard to the interest of justice, after due consideration of the application by the prosecutor
3. If the application is rejected by the Sessions Court, the interim protection that may be operating in favor of the accused must mandatorily be extended for a period of a minimum of three working days, on the conditions as laid out on which the interim protection itself was granted during the pendency period, or on such other conditions as may be deemed fit by the Sessions Court, with due regard to the interests of justice.
4. If it is considered appropriate by the Sessions Court for extension of protection to be granted for more than three working days, reasons for the same may be recorded, but it should not be more than seven days
5. The conditions imposed by the Sessions Court should be followed by the accused, failing which the interim protection so decided on would instantly cease to operate

Official Database

The analysis of bail case data is incredibly valuable when it comes to understanding the criminal justice system.

DAKSH’s High Court Data Portal has among its various features a Bail Dashboard for the High Courts, which has within it various data points relevant to the assessment of bail-related data.

The following graphical representation indicates the types of bail cases that are heard in the various High Courts, with anticipatory bail clearly visible represented in terms of its proportion.

Anticipatory bail figures as compared against regular bail and cancellation of bail

In several High Courts, bail as a separate case type is not present and bail cases may be included under a general case type, such as ‘criminal appeal’.

The following High Courts have ‘anticipatory bail’ specifically mentioned as a case type.

High Courts with anticipatory bail mentioned as a case type