INTRODUCTION

The term Anticipatory Bail Application (ABA) is nowhere defined
in the Criminal Procedure Code, 1973 (Cr.P.C), however the first
mention of the said term can be seen in the 41st Law Commission
Report, 1969 (the report) where the commission felt the need to
include a provision for protecting an accused or any person who is
apprehending or having a belief that he/she may be arrested for any
offence which is non-bailable in nature. Taking into consideration
the said report and the grave need of the hour, the Parliament
while enacting the 1973 Act, added a provision for Pre-Arrest bail
u/s 438 with a heading “Direction for grant of bail to person
apprehending arrest”.

EVOLUTION OF ANTICIPATORY BAIL IN CRIMINAL JURISPRUDENCE

Before proceeding with the laws of Anticipatory Bail/ pre-arrest
bail it is important for us to understand the history behind the
origin and evolution of the provision of bail as we know it
today.

The origin of bail dates back to medieval times, when the first
known drafted constitution came to be enacted in the year 1215 by
King John of England and was referred to as “Magna Carta”
as we know it today. The genesis of the bail can be extracted from
the clause 39 of Magna Carta, the simple translation of which reads
as “No free man shall be seized or imprisoned, or stripped of
his rights or possessions, or outlawed or exiled, or deprived of
his standing in any other way, nor will we proceed with force
against him or send others to do except by the lawful judgement of
his equals or by the law of the land.” From a perusal of this
clause it can be understood that a person shall not be restricted
or confined unless and until there is a final judgment in
accordance with the laws of land. On a careful reading and decoding
of this clause we can greatly relate the said provision with the
provisions of bail as provided in Cr.P.C.

The old Cr.P.C of 1898 did not have provisions for Anticipatory
Bail/pre-arrest bail. As mentioned above, the idea of anticipatory
bail or pre-arrest bail was first recommended to the Parliament
only under the 41st Law Commission report, post which the provision
of Anticipatory Bail/Pre-arrest bail was incorporated in Chapter 33
of the new Cr.P.C 1973 under section 438 which reads as under:

SECTION 438 CR.P.C – DIRECTION FOR GRANT OF BAIL TO PERSON
APPREHENDING ARREST.

WHICH COURTS HAVE ORIGINAL JURISDICTION TO ENTERTAIN
ANTICIPATORY BAIL APPLICATION

When a person has an apprehension or reason to believe that he
may be arrested for accusation of having committed an offence which
is non-bailable in nature, he may apply to High Court or Court of
Sessions for direction to the investigating agency, that in the
event of arrest he shall be released on bail.

ANALYSIS OF SECTION 438 OF CR.P.C

The section is divided into 3 sub-sections, which have been
analyzed below:

1. SUB-SECTION 1

According to sub-section 1, any person can apply for
anticipatory bail if he has a reason to believe that he may be
arrested on accusation of having committed non-bailable offence.
Here the legislators were clear that such an application can only
be made if the offence for which the ABA is filed is a non-bailable
offence. The sub-section 1 further provides that such an
application can only be moved before the High Court or Session
Court that is empowered to give direction to the investigating
authority seeking arrest of such applicant, to release the
applicant on bail in case of arrest for nonbailable offence.
However, the Parliament in the year 2005, brought in an amendment
requiring the courts entertaining such an application, to be more
cautious while granting any relief under this provision. The
amendment brought in the list of guidelines viz., the court shall
take into consideration the gravity of offence, the courts shall
take into consideration the antecedents of the applicant and also
look into the possibility of the applicant avoiding the trial by
fleeing if ABA is granted and the court shall also consider if the
accusations made in the FIR are made with an intention to harass
the applicant of ABA. The sub-section (1) further states that, in
case the application for ABA has been rejected by the concerned
court or if interim relief is not granted while the pendency of the
said application then it is open for the investigating agency to
arrest the said applicant without warrant on the basis of the
accusation apprehended in such application. Here the legislature
has given secret powers to investigating authority to take into
account the apprehension made out by the applicant and to consider
his apprehensions as alleged crime and arrest him to investigate
why he is apprehending such an arrest.

Further Sub-section “1(A)” was added in 2005 amendment
which states that in case interim relief has been granted by the
concern court then a notice shall be issued to the Public
Prosecutor and the SP/DCP which should not be less that 7 days in
order to give reasonable time to prosecutor to defend the said
application before the application is finally heard. By inserting
this provision the Parliament made it very clear that if the court
is not forthwith rejecting the relief for anticipatory bail and if
the court has prima facie found any merits in the application, then
the application under this section cannot be disposed off unless
and until the Public Prosecutor is heard.

Sub-Section 1(B) was added vide the amendment of 2005 which
provides that if the public prosecutor makes an application before
the court where the ABA is pending then the presence of the
applicant is required during the final hearing or at the time of
passing the final order, and if the concerned court deems it
necessary to allow the same then the presence of the applicant is
obligatory and compulsory.

2. SUB-SECTION 2

This sub-section lays down certain conditions which need to be
put on the applicant while granting him interim protection.

3. SUB-SECTION 3

This sub-section states that if the application under this
provision is allowed, and if such a person is subsequently arrested
without warrant, then he should be released on bail immediately. In
case the magistrate takes cognizance and issues warrant against
such person then such a warrant shall be a bailable warrant.

PREREQUISITES FOR GRANT OF ANTICIPATORY BAIL

There are mainly 2 pre-requisites for applying for Anticipatory
Bail before the appropriate court.

1. The offence against which the bail is sought should be a
   non-bailable offence.




2. There should be a grave apprehension that the accused will be
   arrested by the police authorities for such a non-bailable
   offence.

RECENT LANDMARK JUDGMENTS ON LAW OF ANTICIPATORY BAIL

No time limit could be fixed while granting Anticipatory
Bail

Sushila Agarwal v. State of Delhi
¹

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.

Not granting Anticipatory bail may cause violation of
fundamental rights of an individual under Article 21 of the
Constitution of India

The Hon’ble Supreme Court in the case of Badresh
Bipinbai Seth v. State of Gujarat² was pleased to
hold that “The provision of anticipatory bail enshrined in
Section 438 of the Code is conceptualised under Article 21 of the
Constitution which relates to personal liberty. Therefore, such a
provision calls for liberal interpretation of Section 438 of the
Code in light of Article 21 of the Constitution. The Code explains
that an anticipatory bail is a pre-arrest legal process which
directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the
direction is issued, he shall be released on bail.”

The apex court while observing the above celebrates the two
provisions and related them together. The court was pleased to
observe that Section 438 and Article 21 goes hand in hand and that
by enacting the provision for grant on Anticipatory Bail the
legislature has upheld the fundamental right of the citizen.

Compliance of section 41 (A) Cr.P.C is mandatory in case
of offences punishable with maximum 7 years
imprisonment

Hon’ble Supreme Court, in the case of Arnesh Kumar v.
State of Bihar³ while deciding an application for
ABA for offences u/s 498A, felt it necessary to observe that there
should be a mandatory notice u/s 41A to be sent to the accused if
he is booked for offence with punishment up to 7 years.

Rights of First Informant to intervene in Anticipatory
Bail Application

The Hon’ble High Court of Bombay in the case of Vinay
Potdar v. State of Maharashtra⁴ held that, if
victim of the offence appeared in the court seeking permission to
be heard, then opportunity of being heard is to be given to him or
her.

However, the apex court in the case of Sundeep Kumar Bafna v.
State of Maharashtra,⁵ took a slightly contrary view to
what we discussed above. The court held that “The upshot
of this analysis is that no vested right is granted to a
complainant or informant or aggrieved party to directly conduct a
prosecution. So far as the Magistrate is concerned, comparative
latitude is given to him but he must always bear in mind that while
the prosecution must remain being robust and comprehensive and
effective it should not abandon the need to be free, fair and
diligent. So far as the Sessions Court is concerned, it is the
Public Prosecutor who must at all times remain in control of the
prosecution and a counsel of a private party can only assist the
Public Prosecutor in discharging its responsibility. The
complainant or informant or aggrieved party may, however, be heard
at a crucial and critical juncture of the trial so that his
interests in the prosecution are not prejudiced or
jeopardized.

Is it Mandatory for police to arrest a person only
because his ABA is rejected?

The Hon’ble Supreme Court, in case of M.C Abraham and
Anr v. State of Maharashtra and Anr⁶ , has held
that it is not mandatory for the police to arrest a person merely
because his/her Anticipatory Bail has been rejected.

Footnotes

1 2020 SCC OnLine SC 98

2 (2016) 1 SCC 152

3 (2014) 8 SC C 273

4 2009 ALL M.R. (Cri.) page 687

5 (2014) SCC online SC 257

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.