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Anticipatory Bail under CrPc

  • Anticipatory bail means bail in anticipation of an arrest.
  • Any person who apprehends arrest under a non-bailable offence can apply to High Court or Court of Sessions for Anticipatory Bail under the provisions of section 438 of CrPC.
  • It is basically bail before arrest, a person arrested cannot seek Anticipatory Bail, he would have to move for a regular bail.
  • The words anticipatory bail is neither found in section 438 nor in its marginal note. In fact, anticipatory bail is a misnomer.
  • When a court grants anticipatory bail, what it does is
  • to make an order that in the event of arrest, the person shall be released on bail.
  • Therefore, the said powers are exclusively vested with the Court of Sessions and High Courts.

Prerequisite condition
  • Prerequisite condition for considering the application for anticipatory bail is that
  • the offence must be non-bailable.
  • The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
  • The Sessions Court or the Hon'ble High Court considering
  • the nature and gravity of accusation,
  • the antecedent of applicant,
  • the possibility to flee from justice and
  • whether the accusation has been made with object of injury or humiliating the applicant by having him arrested may either reject the application or issue an interim order for the grant of anticipatory bail.
  • When the respective court has not passed any interim order or has rejected the application then the officer-in-charge of police station has right to arrest the accused without warrant.
  • The interim order along with the seven days notice must be served to the Public Prosecutor and Superintendent of Police with a view to give them an opportunity for hearing on the application.
  • The presence of applicant seeking anticipatory bail shall be obligatory at the time of final hearing of application and passing final order by the Court. But the Public Prosecutor must have to apply for the same.

Section 438(2) of Cr.P.C. provides that, the High Court or the Sessions Court may also impose some conditions while granting the application.
The conditions may be as follows:
  1. that the persons shall make himself available for the interrogation by police officer as and when required;
  2. that the person shall not directly or indirectly make any inducement, threats or promise to any witness;
  3. that a person shall not leave India without previous permission of the Court.
  1. Sushila Agarwal v. State of Delhi

    No time limit could be fixed while granting Anticipatory Bail
    The Hon'ble court was pleased to frame 2 questions while deciding the landmark judgment viz.:
    1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail &
    2. Whether 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 was pleased to answer the first question by holding that there can be no time limit set for the Anticipatory Bail by the court granting the same.

        The five-judge bench was pleased to unanimously hold 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."
      • Answering the second question the Hon'ble court held 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."
      • The Supreme Court was cautious while answering the second question by granting discretionary powers to the court to limit the tenure of the Anticipatory Bail in case of special or peculiar facts of case.
  2. Badresh Bipinbai Seth v. State of Gujarat

    Not granting Anticipatory bail may cause violation of fundamental rights of an individual under Article 21 of the Constitution of India
  3. Amiya kumar v. state of west Bengal 1978 Cri.LJ 288
    In the instant case, it was held that section 438 of the code empowers both the high court and the sessionís court to grant the anticipatory bail. Both the high court and the Sessions court have the competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then he canít file the petition for the same in the high court.
  4. D.R. Naik v. the State of Maharashtra,1989 Cri.LJ 252

    In the instant case, it was held that if a person files an application for anticipatory bail and it is rejected by the sessionís court, this will not put the bar over the person filing the petition to approach High court. But if the person first approaches the high court and the petition filed by him gets rejected, then he canít approach the sessionís court for filing the petition on the same ground.

Malimath Committee Report

The Malimath committee gave its observation regarding the provision of anticipatory bail. They stated that the provision of section 438 is often misused by the people. Such misuse of the provision is illegal. The committee after the following observation suggested two conditions or requirements for the purpose of retaining the provision.

The following conditions are as follows:
  • Before granting the anticipatory bail the court shall hear the public or the government prosecutor
  • When a person files a petition of anticipatory bail it must be heard by a court having competent jurisdiction.

Distinction between Bail and the anticipatory bail

Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody, however in the case of an anticipatory bail, bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.

It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court.

The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody.

These provisions envisaged in the code gives the brief regarding the provisions of the bail. The process of bail is a legitimate process.

Written By: Er Khaliqul Azam - (DME, B.E, MA, LLB) 07762900229, Email: [email protected]

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