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 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.

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

The State of Uttar Pradesh is an example of a State that had, by amendment, entirely done away with the concept of anticipatory bail. Though this had happened in 1976, during the Emergency, the provision was reintroduced 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