Anticipatory Bail
Like most labels the term 'anticipatory bail' is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants 'anticipatory bail', what it does is only that it orders that in the event of arrest, a person shall be released on bail. A Constitution bench of Supreme Court explained the term as under:
"Neither the section 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 arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. ……… An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike as post-arrest order of bail, it 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."
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980 SC 1632, 1980 SCR (3) 383.
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 operative. Now, this power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be 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" that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court.
Balchand Jain vs. State of M.P., 1977(2) SCR 52: 1977 SC 366: 1976(4) SCC 572: 1977(2)SCR52: 1977 CRLJ 225.
The object an purpose of provision for anticipatory bail has been explained by the Constitution Bench of Supreme Court as such:
"The crimes, the criminals and even the complainants can occasionally possess extra-ordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973."
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980 SC 1632, 1980 SCR (3) 383.
Law Commission of India in its forty first report, dated September 24, 1969, had recommended about anticipatory bail as under:
"39.9. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because some-times 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. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. 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."
Law Commission of India in its forty eight report recommended that the power to grant bail in anticipation of arrest must be exercised only after a notice has been effected to the prosecution. It recommended:
"31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice."
Accordingly Section 438 of Code of Criminal Procedure was originally enacted as under:
"438. Direction for grant of bail to person apprehending arrest– (1) 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.
(2) 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.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)."
The aforesaid provision was amended in 2005 and its sub-section (1) has been substituted with following provision:
"(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) 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;
(iii) the possibility of the applicant to flee from justice; and
(iv) 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: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub- section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice."
However the aforesaid amended provision is yet to be enforced from a date not yet notified. Thus the previous provision as existed prior to this amendment shall continue to govern the anticipatory bails, until then. It may also be noted that after the aforesaid amended provision was incorporated in the rule book, the Ministry of Law consulted Law Commission in this regards which advised deletion of proviso and subsection (1B) from the provision. Law Commission in it's 203rd report submitted to Law Ministry vide D.O. No.6(3)128/2006-LC(LS) dated December 26, 2007 and recommended:
"As regards the Proviso to sub-section (1) of Section 438, as amended, permitting arrest of the applicant by the police without warrant on the basis of the accusations apprehended in the application for grant of anticipatory bail, the Law Commission has been of the view that the proviso is more of explanatory nature and clarifies that there shall be no bar against such arrest by the police in the circumstances mentioned therein if there are otherwise reasonable grounds to make such arrest. The Commission noted that the correct law was laid down by the Hon'ble Supreme Court on this aspect in the case of M.C. Abraham and another Vs State of Maharashtra and others, (2003) 2 SCC 649. Accordingly, the power of arrest is not to be exercised in a mechanical manner but with caution and circumspection. The mere fact that the bail applications are rejected is no ground for directing the applicants' immediate arrest. There may be cases where an application may be rejected and yet the applicant is not put up for trial as, after investigation, no material is found against him. In this case, the apex court held that the High Court proceeded on the assumption that since petitions for anticipatory bails were rejected, there was no option for the State but to arrest those persons. This assumption, the Supreme Court said, was erroneous. Accordingly, the Commission has concluded that it is not necessary to have the Proviso inserted in Section 438(1) and recommended its omission."
In regards to subs section (1B) stipulating that the accused must be present in person on the date application of bail is finally heard, Law Commission has recommended it's deletion as under:
"As regards sub-section (1B) relating to the presence of the applicant at the time of final hearing, the Law Commission has gone in depth in the nitty gritty of restraint and custody to which the applicant may be subjected to in terms of the Court's order under sub-section (1B). The Law Commission has come to the conclusion that when the applicant appears in the Court in compliance of the Court's order and is subjected to the Court's directions, he may be viewed as in Court's custody and this may render the relief of anticipatory bail infructuous. Accordingly, the Law Commission has recommended omission of sub-section (1B) of Section 438 Cr.P.C."
Apparently the Ministry of Law has not made up its mind hence neither Amended provision has been enforced nor amended.
Never the less the right to seek anticipatory bail is merely a statutory right granted by legislature. Therefore he deletion of the application of Section 438 in the State of Uttar Pradesh by Section 9 of the Code of Criminal Procedure (U.P.) Amendment, 1976 does not offend either Article 14 or Article 19 or Article 21 of the Constitution and the State Legislature is competent to delete that section, which is one of the matters enumerated in the Concurrent List (List III of the Seventh Schedule) tand such deletion is valid under Article 254(2) of the Constitution.
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
Notwithstanding deletion of section 438 in its application to U.P., while upholding the directions of Allahabad High Court for expedient disposal of bail application in Amrawati case, Supreme Court has directed as under:
"In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation."
Lal Kamlendra Pratap Singh v. State of Uttar Pradesh,(2009) 4 SCC 437.
Scope of anticipatory bail
Relevant considerations governing the court's decision in granting anticipatory bail under S. 438 are materially different from those when an application for bail by person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal.
Pokar Ram vs. State of Rajasthan , 1985 SCR (3) 780; AIR 1985 SC 969.
Even though consideration which should weigh with the Court while dealing with a request for anticipatory bail need not b the same as for an application to release on bail after arrest.
State vs. Anil Sharma, decided by SC on September 3,1997.
There is no indication in Section 438 of the Code for justifying a hiatus to be made among non-bailable offences vivisecting those punishable with death or imprisonment for life and those other punishable with death or imprisonment for life and those other punishable with less than life imprisonment. No doubt such a classification is indicated in Section 437(1) of the Code, but that Section is concerned only with post-arrest bail and not pre-arrest bail.
State of Andhra Prasad vs. Bimal Krishna Kundu, decided by SC on October 3, 1997.
The discretion to grant bail in non- bailable offences remains with the Court and hence, it cannot be claimed as a matter of right, but the aggrieved party can only seek a remedy and it is on the discretion of the Court to grant it or not.
Hema Mishra vs State Of U.P., decided on 16 January, 2014 by Supreme Court.
Organised crime
Grant of anticipatory bail is of course not automatic but it generally denied in cases of large conspiracy involving several persons. Because in such cases it may result in dissipation of evidence or witnesses or both. A conspirator is not a victim of emotion, as in the case of crime of passion. Rather a conspirator is a person with higher degree of intelligence which s/he employs to make a quick fulfilment of purpose to the loss of society as a whole.
In one such case attention of the court was invited to the fact that in the statement recorded during investigation from Smt. Aruna Kumari, who was a proof reader of the printing press of the respondents at Calcutta, and also in the statement of her husband K.P.Rao the fact that S.K. Saha was working as proof reader in English and Sanskrit in the press of the respondents at Calcutta, it was clearly been made out and that question papers for the crucial examination conducted by the P.S.C were actually printed in the press of the respondents was also revealed by those witnesses. Besides the fact that in the confessional statement of another accused (Ramabrahmam) it was revealed that the question papers were printed in the press of the respondents and the witness too was privy to the leakage. In these circumstances while setting aside the pre-arrest bail, it was observed:
"We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to the respondent. It is disquieting that implications of arming respondent, when they are pitted against this sort of allegations involving well orchestrated conspiracy, with a pre-arrest bail order, though subject to some conditions, have not been taken into account by the learned single judge. We have absolutely no doubt that if respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impeded the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence. Having apprised himself of the nature and seriousness of the criminal conspiracy and the adverse impact of it on "the career of millions of students", learned single judge should not have persuaded himself to exercise the discretion which Parliament had very thoughtfully conferred on the sessions judges and the High Courts through Section 438 of the Code, by favouring the respondents with such a pre-arrest bail order
State of Andhra Prasad vs. Bimal Krishna Kundu, decided by SC on October 3, 1997.
In another case accused was a former Minister of the Himachal Pradesh State Government and he held the office for about three years. Besides that, he is a member of the Legislative Assembly of that State also. His father Sukram was Union Minister for Telecommunications. CBI has been investigating a case against respondent for offence under Sections 13 of the prevention of Corruption Act, 1998 with the allegation that respondent approached the High Court of Himachal Pradesh for an order of anticipatory bail. Over- ruing all the objecting raised by the CBI, a learned Single Judge of the High Court granted the order Subject to the conditions that respondent shall not go aboard without prior permission of the Court, and shall surrender his passport to the CBI etc. Accusation made against respondent, as at present, are inter alia, that he had acquired wealth to the tune of Rs.16,65,000/- as against his known sources of income which could not reach even half of that. CBI further alleges that the assets have been made by the responded through illegal means and "there is clear-cut evidence pointing to the transfer of assists by Shri Sukhram in the name his son". According to the CBI, it was a clear case of corruption in high places and the order of anticipatory bail should never have been granted in such a case. While setting aside anticipatory bail, court observed:
"We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders.
State vs. Anil Sharma, decided by SC on September 3,1997.
Even in case where a co-accused has been granted regular bail (i.e. bail after arrest), the same principle was reiterated by Gujarat High Court, in a recent decision and it was observed:
"The applicant is part of team which as such has not only permitted defaulting vehicles to cross the border without payment of penalty but has been instrumental in a huge financial loss to the State Exchequer in a preplanned systematic method with help of all accused in conspiracy with each of them. The investigation papers reveal that the applicant is the kingpin of the whole racket and as rightly contended by learned Public Prosecutor, custodial interrogation of the applicant is necessary. In facts of this case, conduct of the applicant, the exact role of the applicant and gravity of offence, no parity can be granted as accused no.2 has been granted regular bail. "
Vipul Ramjibhai Patel vs State Of Gujarat, decided on 28 April, 2016 (Guj.)
In another case also from Gujarat, it was found that the Government proposed allotment of certain plots subject to a condition that allotment could be made only to those persons who fall within the G-5 category and a duty was cast on the applicant to make allotment to only those persons to whom he, as the Collector, issues G-5 certificates and that too after personal verification. It was the applicant's own case that he has not issued any certificate. Yet he allotted the land / shops, and on what basis the allotment was made was under investigation. Hence he was denied pre arrest bail.
State vs. Tushar Mehta, decided on March 3, 2010 (Guj.)
The conspiracy, however must be a real one rather than mere perceived notion of prosecution. In another case, a person of a particular political leaning was murdered. The murderers were arrested who confessed and claimed that they were paid by 'J' a religious head of a Hindu religious institution and that they were paid Rs. 50 lacs to commit the crime. The allegations that the payment of Rs. 50 lacs were withdrawn from a particular Bank was shown to be false. The money was lying in deposit in another bank but was no withdrawal. Accused was granted bail with these observations:
"The opening words in Section 10 are "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence". If prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all. Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators. No worthwhile prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner along with A-2 and A-4 was party to a conspiracy. The involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be established by the confessions themselves. The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as under :
"The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words "common intention" signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference."
Here, the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and, therefore, Section 10 of the Evidence Act cannot be pressed into service. However, we do not feel the necessity of expressing a concluded opinion on this question in the present case as the matter relates to grant of bail only and the question may be examined more deeply at the appropriate stage. "
Jayendra Saraswathi Swamigal vs State Of Tamil Nadu, decided by SC on 10 January, 2005.
Bail after charge sheet
There is no bar in filing an application under S.438 after the filing of the charge-sheet or after the issuance of a process under S.204 of the Code or after the issue of warrant of arrest in a complaint case. Such an application is maintainable at post cognizance stage of a case instituted on police report or complaint after the Court issues process like warrant of arrest for production of a person of having committed a non-bailable offence.
Shamim Ahmed vs. State, 2003 Cri.L.J. 2815 Calcutta (FB) followed in NKKP Raja vs. State, decided on 2 September 2009 by Madras HC.
Conditions for anticipatory bail.
This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clause (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980 SC 1632, 1980 SCR (3) 383.
The aforesaid Constitution Bench decision in Gurbaksh Singh Sibbia is the leading case which still holds the ground and therefore must always read in full. However this case laid down following principles in regards to the grant of bail in anticipation of arrest:
1. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Section 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail.
2. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to whose mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
3. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Court, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket.
4. It is understandable that if mala fides are shown anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction.
5. It is incorrect to say that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
6. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.
7. It is incorrect to say that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.
8. Accused has to make out a prima facie case but it cannot be asked to make out a special case. Though power to grant anticipatory bail is extraordinary but it does not justify conclusion that it should be exercised in exceptional cases only.
9. 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 motive, 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 would generally be 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 would not be made. But the converse of these propositions is not necessarily true. That is to say, 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.
10. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
11. There can be no presumption that the wealthy and the might will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
12. The ruse 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 some one 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. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
13. Normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had.
14. Filing of FIR is not a condition precedent to exercise of power under section 438.
15. To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case".
Gurbaksh Singh Sibbia AIR 1980 SC 1632, 1980 SCR (3) 383. vs. State of Punjab,
It is interesting to note the last proposition about "special case". Inspite of above directive, in some subsequent cases some division benches of Supreme Court appears to have inadvertently strayed its course. Therefore the matter was reconsidered by Supreme Court in Siddharam Satlingappa Mhetre and it reiterated that the decision in Gurbaksh Singh Sibbia still holds the ground and any decision taking a view contrary to the view of Constitution Bench in Gurbaksh Singh Sibbia is per incurium and not binding. It held that the decisions in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State, Adri Dharan Das v. State of West Bengal, Sunita Devi v. State of Bihar and Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632 not good law. It was also held that the following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
Siddharam Satlingappa Mhetre vs. State of Maharashtra, AIR 2011 SC 312.
However where the High Court granted anticipatory bail without recording any of the above reasons, its order was set aside with following observations:
"The High Court ought to have exercised its extraordinary jurisdiction following the parameters laid down by this Court in above referred to judicial pronouncements, considering the nature and gravity of the offence and as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very lightly brushed aside the fact that FIR had been lodged spontaneously and further did not record any reason as how the pre-requisite conditions incorporated in the statutory provision itself stood fulfilled. Nor did the court consider as to whether custodial interrogation was required.
The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors the grounds provided in Section 438 Cr.P.C. itself suffers from non- application of mind and therefore, cannot be sustained in the eyes of law."
Jai Prakash Singh vs State Of Bihar, decided by SC on 14 March, 2012.
A Special Court constituted under Section 36 of the NDPS Act, 1985 is also competent to entertain a pre-arrest bail petition under Section 438 of the Code of Criminal Procedure, 1973.
Teru Majhi , decided by Calcutta FB on 3 April, 2014. vs State of West Bengal
In view of the decision in Siddharam Satlingappa Mhetre holding decision like Salauddin Abdulsamad Shaikh v. State of Maharashtra as not good law, the judgement following this or similar judgements e.g. Prashant Kishor Mehta vs State Of Maharashtra decided by Bombay HC on 23 April, 2008, are also not good law.
Application of mind
If an application for anticipatory bail is made to the High Court or the Court of Session it must 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 will defeat the very object of Section 438.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
Reason to believe
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 some one 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. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
Considerations for anticipatory bail
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 motive, 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 would generally be 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 would not be made. But the converse of these propositions is not necessarily true. That is to say, 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. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. 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 has to keep in mind while deciding an application for anticipatory bail…….It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
It is a matter of common knowledge that a large number of under-trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.
Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.
Necessity of FIR
The filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. 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. But the provisions of Section 438 cannot be invoked after the arrest of the accused. 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.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
Alternate remedy
If an application for anticipatory bail is made to the High Court or the Court of Session it must 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 will defeat the very object of Section 438.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
Need for special case
To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". Why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
The court in Gurbaksh Singh Sibbia disagreed with the observations made in a previous case i.e. Balchand Jain v. State of Madhya Pradesh in which Bhagwati J. who spoke for himself and A. C. Gupta, J. observed:
"the power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be 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" that such power is to be exercised."
Fazal Ali, J. who delivered a separate judgment, in concurrence, also observed that:
"an order for anticipatory bail is an extraordinary remedy available in special cases". (emphasis added)
The court in Sibbia observed that the above observations were obiter dicta as the question did not arise before the court in that case and distinguished above observations as under:
" We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that Rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain (supra) in an altogether different context on an altogether different point."
In view of above discussion the power of court to grant bail in anticipation of arrest is a power similar to the power to of grant of bail after the arrest and no special case is needed to be made out to seek bail in anticipation of arrest.
Bail after arrest
The provisions of Section 438 cannot be invoked after the arrest of the accused. 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.
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383.
Need for Custodial Investigation
Section 41 read with section 167 of Cr.P.C. confers power to the police to arrest and investigate into allegations of crime. Interrogation of the accused by arresting him and taking into police custody is a well accepted method. But the right of police to investigate can not prevail over the liberty of the accused if it is so determined by the court.
Anticipatory bail should not be refused merely because prosecution claim that they want the accused in police custody for the purpose of investigation. The genuineness of the alleged need for police custody has to be examined and it must be balanced against the duty of Courts to uphold the dignity of every man and to vigilantly guard his right to liberty without jeapordizing the State objective of maintenance of law and order.
Jagannath vs. State, (1982) 84 Bom LR 261 following Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383 which had overruled Gurbaksh Singh v. State of Punjab, 1978 Cri LJ 20: AIR 1978 Punj & Har 1 and Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 (Kar).
Notice to Public Prosecutor
The section 438 as it stood prior to Amendment of 2005, did not stipulate any prior notice to be given to the Pubic Prosecutor before granting anticipatory bail but this requirement was red into it as a principle of natural justice. See the following observations of Supreme Court in this regard:
"Can an order of bail be passed under that section without notice to the public prosecutor? It can be. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage."
Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980SC 1632 (FB), 1980 SCR (3) 383. (See also Savitri Goenka Vs Kusum Lata Damant, 2007 (12) SCALE 799)
Blanket bail order
A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.
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