a word widely used in parlance of litigation but which does
not owe its origin to a statute. Neither section 438 of Cr.P.C nor its marginal
note so describes it but, the expression 'anticipatory bail' is a convenient
mode of conveying that it is possible to apply for bail in anticipation of
In fact 'anticipatory bail' is a misnomer. It is not a bail presently
granted by the Court in anticipation of arrest. When the court grants
anticipatory bail it means is that in event of arrest the person shall be
released on bail.
The conflict of judicial opinion whether a High Court had inherent powers to
make an order of bail in anticipation of arrest and the need to curb the acts
of, influential persons trying 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 were the necessities, carved out by Law Commission of India
in its 41st Report to introduce provision relating to Anticipatory bail.
things have a dark side so do this provision of the code. The object behind
enacting this law was to prevent the innocent from getting trapped but with time
the picture has changed and now persons accused of heinous offences and even
habitual offenders are invoking it repeatedly, which was not the intent of the
relief sought to be given by this section.
Introduction And Its History
Historically, the Code of Criminal Procedure, 1898 (old Code) did not contain
specific provision corresponding to Section 438 of the present Code of 1973.
Under the old Code, there was a sharp difference of opinion amongst various High
Courts on the question whether a Court had inherent power to make an order of
bail in anticipation of arrest. The preponderance of view, however, was that it
did not have such power.
The expression anticipatory bail
has not been defined in the Code and is a
misnomer inasmuch as, it is not as if bail presently granted in anticipation of
arrest. Where a competent court grants `anticipatory bail', it makes an order
that in the event of arrest, a person shall be released on bail.
The power of
granting `anticipatory bail' is extraordinary in character and only in
exceptional cases where it appears that a person is falsely implicated or a
frivolous case is launched against him or 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, such power is exercised. Therefore,
the power being `unusual in nature' is entrusted only to the higher echelons of
judicial service, i.e. a Court of Session and a High Court.
An order of anticipatory bail constitutes, 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. Section 46(1) of the Code of Criminal
Procedure which deals with how arrests are to be made, provides that in making
the arrest, the police officer or other person making the arrest shall actually
touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.
A direction under section 438 is
intended to confer conditional immunity from this 'touch' or confinement. The
distinction between an ordinary order of bail and an order of anticipatory bail
is that whereas the former is granted after arrest and thus 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.
The grant of anticipatory bail
to an accused who is under arrest involves a contradiction
in terms, in so far as the offence or offences for which he is arrested, are
concerned. After arrest, the accused must seek his remedy under Section 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
The High Court and a Court of Session, have concurrent jurisdiction to grant
anticipatory bail. There has been a judicial conflict as regards to the Court
competent to grant anticipatory bail, when the place of commission of offence
and the place of apprehension of arrest lie within two different states but the
dictum accepted by majority of the High Courts is that that, a court of Session
or the High Court having jurisdiction over the local commission of offense can
only grant anticipatory bail.
The High Courts of Rajasthan, Madhya Pradesh,
Gujarat and Delhi have been firm on the legal position that a court within whose
jurisdiction a person apprehends arrest for a non-bailable offence is competent
court to grant anticipatory bail and a court has no jurisdiction to grant
anticipatory bail to the petitioner against whom a case has been registered in
The Kerala High Court has also held that an arrest made outside
the State will not be protected by an order under Section 438 unless the offense
itself is alleged to have committed within the state'. Whereas on the other
hand, the Bombay High Court has taken a contrary view and held that if the
offense is committed in one state but arrest is expected in another State, the
High Court in the latter state can entertain application for anticipatory bail.
The unique stand taken by the High Court of Karnataka and Gujarat regarding the
same appears to be more suitable interpretation wherein it was held that:
Sec 438 Cr.P.C. provides relief to the person apprehending arrest even though
the court may not have jurisdiction to deal with the offence. He can seek relief
in the court within whose jurisdiction he ordinarily resides. Anticipatory bail
of limited duration can be granted with a direction to the petitioner to
approach the court concerned. Thus an application under Sec 438 should be
finally decided by only the court within whose jurisdiction the alleged offence
has been committed.
Considerations To Exercise Discretion
The Courts have felt that wide discretionary power conferred by the Legislature
on the higher echelons in the criminal justice delivery system cannot be put in
the form of strait-jacket rules for universal application as the question
whether to grant bail or not depends, for its answer upon a variety of
circumstances, the cumulative effect of which must enter into the judicial
A circumstance which, in a given case, turns out to be conclusive may
or may not have any significance in another case. Nonetheless, the discretion
under the Section has to be exercised with due care and circumspection depending
on circumstances justifying its exercise.
Section 438(1) of the Code lays down a condition which has to be satisfied
before anticipatory bail can be granted. 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 someone 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. Sec 438(1) cannot be invoked on
the basis of vague and general allegations, as if to arm oneself in perpetuity
against a possible arrest.
Moreover if an application for anticipatory bail is
made to the High Court or the Court of Session, it becomes imperative for the
court to apply its own mind to the question and decide whether a case has been
made out for granting such relief. It cannot leave the question for the decision
of the Magistrate concerned under Section 437 of the Code, as and when an
occasion arises. Such a course defeats the object of Section 438.
In regard to anticipatory bail, if the proposed accusation appears to stem not
from motives of furthering the ends of justice but from some ulterior emotive,
the object being to injure and humiliate the applicant by having him arrested, a
direction for the release of the applicant on bail in the event of his arrest is
generally made. On the other hand, if it appears likely considering the
antecedents of the applicant, that taking advantage of the order of anticipatory
bail he will flee from justice, such an order is not made. But the converse of
these propositions is not necessarily true.
It cannot be laid down as an
inexorable rule that anticipatory bail cannot be granted unless the proposed
accusation appears to be actuated by mala fides; and equally, that anticipatory
bail must be granted if there is no fear that the applicant will abscond.' The
nature and seriousness of the proposed charges, the context of the events likely
to lead to the making of the charges, a reasonable possibility of the
applicant's presence not being secured at the trial, a reasonable apprehension,
that witnesses will be tampered with and the larger interests of the public or
the State, are some of the considerations which the court's keep in mind while
deciding an application for anticipatory bail.'
In evaluation of the consideration whether the applicant is likely to abscond,
there can be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away from the
course of justice, and more than there can be a presumption that the former are
not likely to commit a crime and the latter or more' In. considering a petition for grant of bail
necessarily, if public interest requires, detention of citizen in custody for
purpose of investigation could be considered and rejected, as otherwise there
could be hurdles in investigation even resulting in tempering of evidence.
Apex Court has held that anticipatory bail cannot be granted as a matter of
right. It is essentially a statutory right conferred long after the coming into
force of the Constitution and that it cannot be considered as an essential
ingredient of Article 21 of the Constitution. Therefore its non-application to a
certain special category of offences cannot be considered as violative of
A duty has been thrust on the courts, to examine the facts carefully and to
ensure that no prejudice is caused to investigation. It is a delicate balance
whereby the liberty of citizen and the operation of criminal justice system have
both to be safeguarded. Custodial interrogation of such accused is indispensable
necessary for the investigating agency to unearth all the links involved in the
criminal conspiracies committed by the persons which ultimately led to capital
Where it is pointed out that the action is malafide or tainted the
courts are required to reach out the conclusion and do justice by preventing
harassment and unjustified detention. Specific events and facts must be
disclosed by the applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of the
exercise of power conferred by the section.
The High Court or a Court of Session exercise their discretion upon examination
of the facts and circumstances to grant anticipatory bail if it thinks fit
since denial of bail amounts to deprivation of personal liberty, they lean
against the imposition of unnecessary restrictions on the scope of Section 438,
especially when no such restrictions have been imposed by the legislature in the
terms of that section.
An over- generous infusion of constraints and conditions
which are not to be found in Section 438 can make its provisions
constitutionally vulnerable since the right to personal freedom cannot be made
to depend on compliance with unreasonable restrictions. The beneficent provision
contained in Section 438 must be saved, not jettisoned.
But, while granting such
anticipatory bail, the Court may impose such conditions as it thinks fit, but
the object of putting conditions should be to avoid the possibility of the
person hampering investigation. Harsh, onerous and excessive conditions which
frustrate the very object of anticipatory bail cannot to be imposed. Subjecting
an accused to any condition other than conditions mentioned in the Section is
beyond the jurisdiction of the court.
Filing of F.I.R is not a condition
precedent to the exercise of the power under Section 438 and the imminence of a
likely arrest founded on a reasonable belief can be shown to exist even if an
F.I.R. is not yet filed. Anticipatory bail can be granted even after an F.I.R.
is filed, so long as the applicant has not been arrested. The provision cannot
be invoked after the arrest of an accused. Moreover the salutary provision
contained in Section 438 Cr.P.C. were introduced to enable the Court to prevent
the deprivation of personal liberty. It cannot be permitted to be jettisoned on
technicalities such as the challan having been presented anticipatory bail
cannot be granted
Duration Of Orders
A Single Judge of Supreme Court in regard to length of the time for which the
order of anticipatory bails stay operative, in the case of K.L. Verma v State of
Maharashtra held that :
'Anticipatory bail granted in anticipation of arrest in non-bailable cases, does
not mean that the regular court, which is to try the offender, is sought to be
bypassed. That is the correct procedure to follow because it must be realized
that the Court of Sessions or the High Court is grants anticipatory bail at a
stage when the investigation is incomplete and, therefore, it is not informed
about the nature of evidence against the alleged offender.
Therefore it was
necessary that such anticipatory bail orders should be of a limited duration
only and ordinarily on the expiry of that duration or extended duration the
court granting anticipatory bail should leave it to the regular court to deal
with the matter on an appreciation of evidence placed before it after the
investigation has made progress or the charge-sheet is submitted.
By this, the
Court desired to convey that an order of anticipatory bail does not ensure till
the end of trial but it must be of limited duration as the regular court cannot
be bypassed. The limited duration must be determined having regard to the facts
of the case and the need to give the accused sufficient time to move the regular
court for bail and to give the regular court sufficient time to determine the
In other words, till the bail application is disposed of one
way or the other the court may allow the accused to remain on anticipatory bail.
To put it differently, anticipatory bail may be granted for a duration which may
extend to the date on which the bail application is disposed of or even a few
days thereafter to enable the accused persons to move the higher court, if they
The dictum laid in K.L. Verma's case
was upheld in the case of Salauddin Abdulsamad Shaikh v The State Of Maharashtra
Sunita Devi V State
and it was held that the Anticipatory bail orders should be of a
limited duration only and ordinarily on the expiry of that duration or extended
duration' the Court granting anticipatory bail should leave it to the regular
Court to deal with the matter on an appreciation of evidence placed before it
after the investigation has made progress or the charge-sheet is submitted.
Though it was not necessary that the operation of an order passed under Section
438(1) of the Code be limited in point of time but the Courts could, if there
were reasons for doing so, limit the operation of the order to a short period,
until after the filing of FIR in respect of the matter covered by the order. The
applicant, in such cases were required to obtain an order of bail under Section
437 or 439 of the Code within a reasonable short period after the filing of the
In another case it was reiterated that the provisions of Section 438 Cr.P.C.
cannot also be invoked to exempt the accused from surrendering to the Court
after the investigation is complete and if charge-sheet is filed against him.
Such an interpretation amounted to violence to the provisions of Section 438
Cr.P.C., since even though a charge-sheet may be filed against an accused and
charge is framed against him, he may still not appear before the Court at all
even during the trial.
Section 438 Cr.P.C. contemplates arrest at the stage of
investigation and provides a mechanism for an accused to be released on bail
should he be arrested during the period of investigation. Once the investigation
makes out a case against him and he is included as an accused in the charge-
sheet, the accused has to surrender to the custody of the Court and pray for
regular bail. On the strength of an order granting Anticipatory Bail, an accused
against whom charge has been framed, cannot avoid appearing before the trial
Sec 438 does not mention anything about the duration to which a direction for
release on bail in the event of arrest can be granted. The order granting
anticipatory bail is a direction specifically to release the accused on bail in
the event of his arrest. Once such a direction of anticipatory bail is executed
by the accused and he is released on bail, the concerned court would be fully
justified in imposing conditions including direction of joining investigation.
In pursuance to the order of the Court of Sessions or the High Court, once the
accused is released on bail by the trial court, then it would be unreasonable to
compel the accused to surrender before the trial court and again apply for
regular bail. The Supreme Court declared the law laid down in the cases of K.L.
Verma v State, Salauddin Abdulsamad Shaikh v The State Of Maharashtra and Sunita
Devi V State of Bihar
as per incurium and held that:
The validity of the
restrictions that the accused released on anticipatory bail must submit himself
to custody and only thereafter can apply for regular bail is contrary to the
basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article
21 of the Constitution.
The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India. Directing the accused to
surrender to custody after the limited period amounts to deprivation of his
personal liberty. It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period of which an order
under this section could be granted.
Once the anticipatory bail is granted then
the protection should ordinarily be available till the end of the trial unless
the interim protection by way of the grant of anticipatory bail is curtailed
when the anticipatory bail granted by the court is cancelled by the court on
finding fresh material or circumstances or on the ground of abuse of the
indulgence by the submitted In view of the clear declaration of law laid down by
the Constitution Bench in Sibbia's case
it would not be proper to limit the life
of anticipatory bail.
When the court observed that the anticipatory bail is for
limited duration and thereafter the accused should apply to the regular court
for bail that means the life of section 438 Cr.P.C. would come to an end after
that limited duration. This limitation has not been envisaged by the
legislature. The Constitution Bench in Sibbia's case
clearly observed that it is
not necessary to re-write section 438 Cr.P.C. Therefore, in view of the clear
declaration of the law by the Constitution Bench, the life of the order under
section 438 Cr.P.C. granting bail cannot be curtailed.
Section 438 is a procedural provision which is concerned with personal liberty
of an individual, entitled to the benefit of the presumption of innocence since
he is not, on the date of his application for anticipatory bail, convicted of
the offence in respect of which he seeks bail. Although the power to release on
anticipatory bail can be described as of an extraordinary character this would
not justify the conclusion that the power must be exercised in exceptional
It is not necessary that the accused must make out a special case
for the exercise of the power to grant anticipatory bail. No straight jacket
formula can be prescribed for universal application in cases of anticipatory
bail as each case has to be considered on its own merits and in its facts and
circumstances. Personal liberty being a very precious fundamental right should
be curtailed only when it becomes imperative according to the peculiar facts and
circumstances of the case.
Acts and Statues
- The code of Criminal Procedure, 1973
- R.V. Kelkar's, 7th Ed., Criminal Procedure
- S.N Mishra, 22nd Ed., The Code Of Criminal Procedure