Black’s Law Dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”
What is anticipatory bail?
S. 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail. Sub-section (1) of the provision reads: “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
The provision empowers only the Sessions Court and High Court to grant anticipatory bail.
Rationale behind anticipatory bail
Anticipatory bail became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898), after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.
The report said, “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 first to submit to custody, remain in prison for some days and then apply for bail.”
In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).
Conditions while granting anticipatory bail
While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2).
S. 438(2) reads: “When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including —
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) 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 so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.”
Sushila Aggarwal (2020) Case Judgment
§ There is nothing in CrPC that indicates the grant of anticipatory Bail should be time-bound.
o However, under CrPC, it is discretionary power of the Court to decide on a case-to-case basis (depending upon the stage at which the Bail application has moved or prevalence of any peculiar circumstances necessitating to limit the tenure) and impose a time limit while granting pre-arrest Bail.
o Also, this duration primarily does not end after first summoning by the Court and can continue till the end of the trial period.
§ If any Court wants to limit the Bail, it can attach special features or circumstances warranting the same.
o The Court while granting anticipatory Bail, should examine the seriousness and gravity of the offence (like nature of the crime, material placed on records, etc.) to impose any condition on the petitioner, if necessary.
o The police can reach the Court seeking permission for arrest in case of breach of such imposed conditions.
§ Application for anticipatory Bail could be filed by a person before the FIR (First Information Report) as soon as the facts make clear there is a substantial reason for the arrest.
§ Appellate jurisdiction to check the correctness of the granted Bail lies with the superior Court on the request of the investigating agency or the State.
§ The Court remarked that “when Parliament has not thought it appropriate to curtail the rights of the citizens and the power of Courts in granting anticipatory Bails, hence, it is not in larger societal interest to curtail such powers & limit the liberty of citizens. The rights of the citizens are fundamental and not the restrictions.”
Cancellation of Anticipatory Bail
§ Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. They imply that a Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts.
§ A High Court or Court of Session may direct that any person who has been released on Bail by it- be arrested, and brought under custody after filing of an application by the complainant or the prosecution.
o However, a Court does not have the power to cancel the Bail granted by the police officer.
Over the years, anticipatory Bail has acted as the protection (granted under Sec. 438 of CrPC) to safeguard a person against whom false accusation or charges have been made. It ensures the release of such falsely accused person even before they are arrested.