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Supreme Court of India & Delhi High
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Anticipatory bail, as the name suggests, is bail granted to a
person in anticipation and apprehending arrest. It is a preventive
relief which was not originally included in The Code of Criminal
Procedure, 1973 (‘CrPC’). 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. The very purpose for the provisions relating to
anticipatory bail is to ensure that no person is confined in any
way until and unless held guilty.

When a person has reason to believe that he may be arrested on
the accusation of committing a non-bailable offence then he can
move to High Court or the Court of Session u/s 438 of CrPC for
anticipatory bail. There are certain factors which are considered
while granting anticipatory bail such as-

1. Nature and gravity of accusation,




2. 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,




3. The possibility of the applicant to flee from justice,




4. 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.

When the court grants anticipatory bail, what it does is to make
an order that in the event of arrest, a person shall be released on
bail. Manifestly 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 operative¹.
Issuance of a summon for appearance also entitles an accused to
apply for anticipatory bail². It has also been held that
anticipatory bail cannot be granted to a person to do something
which is likely to be interpreted as commission of a crime even if
the offender intended it as something in exercise of his
rights³. The distinction between an ordinary 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
there effective at the very moment of arrest⁴.

Conditions for Anticipatory Bail

The High Court or the Court of Sessions, while granting
anticipatory bail may impose conditions as mentioned u/s 438(2).
The conditions mentioned in that sub-section are only illustrative
and the court may impose other conditions, it thinks fit, with a
view to strike a balance between the individuals rights to personal
freedom and the investigational rights of the police. The
conditions imposed while granting such bail are –

1. The applicant has to make himself available for interrogation
   by a police officer as directed by the court or as required by the
   police officer.




2. The applicant should not leave the country without the previous
   permissions of the court.




3. The applicant should submit local residential address, native
   address and contact number to the concerned police station.




4. The applicant should not make any inducement, threat, promise
   etc. to any person acquainted with the facts of the case.

The court granting anticipatory bail cannot impose the condition
that the direction to be released on bail will be applicable for a
specified number of days after arrest because the effect of such
order would be to disable the applicant from applying for regular
bail u/s 437 of CrPC immediately after arrest, before the period
mentioned in the order is over. Section 438 does not entitle the
court to override the provisions of Section 437 and to stay for a
certain period of time the right of the applicant to apply and to
obtain his release on bail⁵.

A direction issued u/s 438 of CrPC to the effect that the
applicant shall be released on bail ‘whenever arrested for
whichever offence whatsoever’, would amount to a ‘blanket
order’. Such a blanket order is not provided for u/s 438 of
CrPC.  The Hon’ble Supreme Court of India in Gurbaksh
Singh Sibbia v. State of Punjab⁶ held that a
‘blanket order’ should not be passed and the court passing
order of anticipatory bail should take care to specify the offence
or offences in respect of which the order will be effective.

Recent Developments

The courts granting anticipatory bail had a conflicting view
regarding the issue as to whether anticipatory bail can be granted
for a fixed duration of time, this controversy was later settled by
the constitutional bench of the Hon’ble Supreme Court of India
in Sushila Aggarwal & Ors. Vs. State (NCT of
Delhi)⁷ where it was held that the protection
granted to a person u/s 438 CrPC should not be limited to a fixed
period unless a special case is made out. The Hon’ble Court
further expounded 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.“

Recently, a 3-judge bench of the Hon’ble Supreme Court of
India in Rahna Jalal v. State of Kerala⁸ held
that there is no bar on granting anticipatory bail for an offence
committed under the Muslim Women (Protection of Rights on Marriage)
Act, 2019 (‘Act’), provided the competent court hears the
woman who has made the complaint before granting the anticipatory
bail. The Hon’ble Court further observed that a true and
harmonious construction of S.438 of CrPC and S.7(c) of the Act
should be made and that the legislature has not expressly barred
the application of S.438 of CrPC.

Conclusion

The rationale behind enacting S. 438 was to safeguard the
personal liberty of individuals, however the use of words ‘may,
if it thinks fit’ in S. 438(1) of CrPC and the absence of any
specific restraints on the exercise of the power to grant
anticipatory bail clearly indicates that the legislature intended
to confer very wide discretionary power on the courts to grant
anticipatory bail. This wide discretion should be used cautiously
by the courts since with the massive increase in the cases of socio
– economic offences in India where the accused have fled the
country to evade prosecution there is an increased chance of misuse
to this preventive relief. The courts need to establish a fine
balance between personal liberty of an individual and public
interest before granting anticipatory bail.

Footnotes

1. Balchand Jain v. State of M.P, (1976)
4 SCC 572

2. P.V. Narasimha Rao v. State, 1997 Cri
LJ 961 (Del)

3. Thayyanbadi Meethal Kunhiraman v. S.I.
of Police, 1985 Cri LJ IIII (Ker)

4. Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565

5. G.V. Prabhu v. State, 1975 Cri LJ
1339,1340 (Goa JCC)

6. Supra note 4

7. 2020 SCC OnLine SC 98

8. 2020 SCC OnLine SC 1061

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