The CrP.C. does not define the words anticipatory bail. This misnomer i.e. ‘anticipatory bail’ becomes operative only on an arrest. The type of anticipatory bail provides that a person who believes that he may get arrested for a non-bailable offence then that person may apply to the either High court or the session’s court in order to get a direction for grant of anticipatory bail under section 438 of Code of Criminal Procedure.
The labelling of any order as ‘anticipatory’ should not be misunderstood. This brings us to state the fundamental difference between an order for an anticipatory bail and one for bail- is that anticipatory bail is granted before arrest and consequently it becomes operative from the very moment when arrest has taken place, however the normal bail can be granted only after arrest.
The provisions for anticipatory bail provisions in India can only be invoked if a person is apprehending arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code).
Analysis of the provision
Scrutiny of the aforementioned provision provides for a remedy for a situation. According to this section where a person is not yet arrested by the police but he apprehends his arrest on an accusation of having committed a non-bailable offence, he can either move to High Court or the Court of Session with that same apprehension and can request the court to grant him an order which would entitle him to be released on bail in case he be arrested. There is no provision regarding time limitation on the orders passed under the anticipatory bail.
Factors to be considered while granting anticipatory bail
The following factors have to be considered by the court while granting an anticipatory bail:
The accusations gravity and its nature
The antecedents of the applicant are also crucial matter. Facts such as whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence or not etc. are relevant.
The applicant’s possibility of fleeing from justice
There can be possibility that accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; in this situation either rejection the application forthwith or issuing an interim order for the grant of anticipatory bail can be done.
Anticipatory Bail for Bailable and Non-Bailable Offence
The application for anticipatory bail can be filed in cases of both, bailable as well as non- bailable offences usually depending upon the kind of offence in accordance with the relevant provision of the CrP.C.
It has been stated in Section 436 that in situations when any person, other than a person accused of a non-bailable offence has been arrested or detained without warrant by an officer in charge of a police station, or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person needs to be released on bail.
Procedure to Apply for Anticipatory Bail
The Court of Session and the High court are to be approached in order to grant anticipatory bail. If a person is under the apprehension that a complaint is filed against him for any of the underlying offences –
1. Criminal breach of trust (Section 406 IPC),
2. Mischief by destroying or moving, etc., a landmark fixed by a public authority (Section 434 IPC).
3. Husband or relative of husband of a woman subjecting her to cruelty (Section 498A IPC),
4. Any other non-bailable offence.
In the above cases, a person who is going to be tried for the above offences needs to consult a criminal lawyer who will help him in getting anticipatory bail. It is then the lawyer’s responsibility to file a vakalatnama and an application for anticipatory bail. Subsequently, after the petition is filed, the hearing is scheduled.
Procedure of Anticipatory Bail When FIR is Filed
In a situation where an FIR has been filed, a notice of arrest will be sent by an investigating officer. As soon as the notice of arrest is served on the person, he shall file an application for anticipatory bail with the help of criminal lawyer. The lawyer is then required to follow the above procedure.
Procedure of Anticipatory Bail When FIR is Not Filed
In this case, the Public Prosecutor is required to talk to the concerned police officer. Since there is no filing of FIR it will be presumed by the public prosecutor and the court that are no available grounds for filing anticipatory bail. In the practical working the following steps will follow:
1)The lawyer making an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest the accused’s family.
2) In all likelihood, the judge will grant the plea.
3) An order will be passed accordingly. This is generally called the ‘notice bail’.
4) If the bail application is rejected in the Sessions Court, one could apply to the High Court. 5) If the High Court also rejects the bail, one can apply to the Supreme Court.
Cancellation of Anticipatory Bail
Under CrP.C, S.439 deals with cancellation of anticipatory bail. Though there is a specific provision in the code for the cancellation, it is hence an implied matter that a court which has the power to grant an anticipatory bail is also empowered to cancel bail or recall the order related to bail upon appropriate consideration of facts.
It is expected that the powers which come with anticipatory bail should not be abused in any manner as it is a special privilege given to a person who is under reasonable apprehension of his arrest.
This inherit power to cancel anticipatory bail can be invoked only when court opines that this is a crucial step to meet the ends of justice.
In the case of, K. Gajendra Baidu Vs State of A.P. it was held by the court that the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for certain purpose There are reasonable grounds for holding that a person accused of an offense is not likely to abscond or otherwise misuse his liberty while on bail.
Position of Anticipatory Bail in various states:
Position in Karnataka:
- The case of Shri H D Kumaraswamy vs. State of Karnataka. In this case, after hearing both sides, the Court opined granting interim anticipatory bail and also directing the respondent, police to release the petitioner along with surety as enumerated in the conditions of the interim anticipatory bail order granted by the Court.
Position in Maharashtra:
- In the case of Siddharam Satlingappa Mhetre Vs state of Maharashtra. Mr. Bhushan contended that the appellant has been implicated in a false case and apart from that he has already joined the investigation and he is not likely to abscond, or in any case misuse the liberty while on bail, therefore in the court’s opinion there was no justified reason to decline anticipatory bail to the appellant.
Position in Uttar Pradesh:
Anticipatory bail has been introduced back in Uttar Pradesh after an estimate of almost 33 years. The provision related to pre-arrest bail was scrapped in 1976 during the Emergency-Period. Now the accused can get advance bail in the state in cases of non-bailable offence.
Controversy around anticipatory bail
Time limitation is the arena which raises controversies in the provisions related to anticipatory bail. The courts have been trying the interpret the essence of this section and it is felt by them that the sole reason for existence of anticipatory bail is for providing the accused person some time to enable him to apply to the regular court for grant of regular bail and therefore, an order granting anticipatory bail will operate only till the time the disposition of the regular bail of the said accused person has taken place.
A constitution bench of Supreme Court in Shri Gurbaksh Singh Sibbia & Ors v. State of Punjab also referred as Sibbia’s case, dealt with this issue at length and put the controversy to rest by explaining the provision categorically and it stated that an order of anticipatory bail is not limited in time and that it will subsist till the end of trial.
The court has explicitly and unequivocally held that in cases where the applicant is seeking anticipatory bail and the FIR is not yet registered, the court ‘may’ grant an order of anticipatory bail, limited in time though in other cases where applicant is seeking anticipatory bail after the registration of FIR, the order of anticipatory bail ‘shall’ not be restricted in time. The difference in the terms of ‘may’ and ‘shall’ should be given due importance and they are essential to the whole concept of time limitation with regard to anticipatory bail, and the same has also been enumerated in the Sibbia’s case, and therefore can’t be overlooked. There is a reason why this difference has been added and the sole reason is to make sure that if in future such controversy arises, then it can be solved then and there accordingly.
Frequently Asked Questions:
1)What is the difference between bail and anticipatory bail?
a. The legal provisions relating to bail are contained in S.436 and 437, Cr. P.C. whereas S.438 deals with anticipatory bail.
b. The old Code had no provision for anticipatory bail and only contained provisions related to normal bail whereas the new amended Code has provisions for both normal and anticipatory bail.
c. The judicial Magistrate or the Court are competent to grant the regular bail however granting anticipatory bail is done only by the High Court or Sessions Court.
d. Regular Bail is granted after arrest hence it a post arrest legal activity, whereas anticipatory bail is provided before the actual arrest and hence it is a pre-arrest legal activity in anticipation of possibility of arrest of a person.
2) Who may be released on Bail?
The following persons may be directed to be released on bail:
i. Any person under the age of 16.
ii. Any person above the age of 60.
iii. Any woman can be released on bail.
iv. Any sick of infirm person.
v. In cases where further inquiry is to take place.
vi. When rule of consistency needs to be followed.
vii. In cases of cross case.
3) Is travelling abroad an option open after getting an anticipatory bail ?
At the time of granting the anticipatory bail the court imposes certain terms and conditions and often contains restriction to travel abroad. At the time of granting the court might seize your passport as well. This is a measure taken by the court to avoid you from absconding. However, in special cases or under exceptional circumstances the court might grant you to go abroad, provided the court is satisfied with your reasons.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje