Aim – This articles if focused to explain the concept of Anticipatory Bail and under what situations anticipatory bails can be granted and provisions related to the same.
Need for Anticipatory Bail
Under the Criminal Law in India, a person can seek anticipatory bail from the court when he has an anticipation or apprehension that he might soon be arrested on the charges of committing a non-bailable offence. Anticipatory Bail is mentioned under Section 438 of the Criminal Procedure Code.
The provision for anticipatory bail was brought into the picture so as to keep a check on the gross misuse of powers of arrest. The number of cases involving false accusations and complaints with a malice was on the rise which is why the provision of Anticipatory Bail was introduced, which does not stop the authorities from investigating the matter, however, an anticipatory bail does prevent the person from being arrested upon the receipt of the complaint he had anticipated of. He can of course be arrested later upon proper investigation and based on such investigation if there are reasonable grounds to believe that he is guilty.
In the case of Satish Vasant Salvi v. State of Maharashtra & Anr., a woman had lodged a complaint against her husband on the charges of cruelty for dowry demands under Section 498a of the Indian Penal Code. The husband was arrested and had to undergo a humiliating test against his will to determine his potency. It was later ruled by the court that the arrest of the man and he undergoing the medical test against his will was illegal under Section 41 of the CrPC and that the same infringed upon his fundamental right to life and liberty under Article 21 of the Constitution of India.
It was due to scenarios like the one above, the provision of Anticipatory Bail was introduced. In the above case, if the husband would have had an apprehension regarding his arrest on the said charges, he could have successfully claimed Anticipatory Bail.
In another case of the same nature Arnesh Kumar v. State of Bihar & Anr., the petitioner had applied for an anticipatory bail having the suspicion that he might be arrested on the charges of cruelty towards wife for dowry but the lower court quashed the petition. He took the matter all the way to the Supreme Court, where the hon’ble court not only decided on the issues of rising cases of false dowry complaints, it also ruled that the power of arrest must be taken utmost seriously since the same involved the infringing upon an individual’s personal liberty which is a fundamental Constitutional right.
It is however very crucial to be noted that a person cannot claim anticipatory bail after the arrest has been made. This can be seen from the case of Satish Vasant Salvi where the husband could not avail anticipatory bail since he was already arrested.
“Reason to believe”- the most important feature for Anticipatory Bail
The idea behind anticipatory bail was to prevent persons from unreasonable arrest. So, the onus of reasonability also applies to the one seeking anticipatory bail. In other words, the applicant must have a logical “reason to believe” that he might be arrested. In the case of Adri Dharan Das v. State of West Bengal, the court ruled that the reason to believe must be based on reasonable grounds and not on any whims and fancies of the applicant.
This same idea was referred to in an earlier Supreme Court case in the case of Jaswantbhai Sheth v. Anand Nagarsheth, in which the petitioner was seeking anticipatory bail on the presumption that he might be arrested even though he was not named in the FIR. The court decided that this is not a valid enough or reasonable ground to claim anticipatory bail.
Factors to be considered to grant Anticipatory Bail.
The hon’ble Supreme Court, after hearing several cases over the course of time has laid out a detailed and exhaustive list of considerations, building on those in Section 438(1), relevant to determining whether to grant anticipatory bail. They are as follows:-
1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before making the arrest.
2. 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.
3. The possibility of the applicant to flee from justice.
4. the possibility of the accused’s likelihood to repeat similar or other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of high magnitude affecting a large number of people.
7. 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 responsibility on the court increases manifold in those cases in which the accusations have been made under Sections 34 and 149 of the IPC.
8. While hearing the pleadings for grant of anticipatory bail, a balance has to be maintained between two factors. Firstly, the courts need to ensure that the grant of anticipatory bail doesn’t come at the expense of free, fair and full investigation of the matter at hand. Secondly, the courts must ensure that the accused doesn’t undergo harassment, humiliation and unjust detention.
9. The court to consider reasonable apprehension of tampering with the evidences and witnesses or apprehension of threat to the complainant.
10. Utmost seriousness in prosecution shall always be considered and it is only the component of authenticity that must be considered when the question is about granting of bail and in case there does persist some doubt as to the authenticity of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
1. In the case of In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2199 (Cal) : 1982 (2) Cal HN 317, it was held that the provision for the anticipatory bail in Section 438 of the Code applies even when there is no “First Information Report” and no case for commission of a non-bailable offence has been registered against a person. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, although no “First Information Report” was filed against him, he may appear before the Court and apply for an order for his release on bail in the event of his arrest.
The filing of a “First Information Report” is not a condition precedent to the application for anticipatory bail and in such a case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session, not for the purpose of being taken into custody of the Court but for getting an order for his release in case he is arrested.
No doubt, even after a “First Information Report” is lodged against such a person, he will be at liberty to appear before the High Court or Court of Session and apply for anticipatory bail without surrendering himself to the jurisdiction and orders of the Court in the matter of his custody as an accused; but although such a course is left open to the person, he may as well appear before the Magistrate having jurisdiction and submit himself to the orders of the Court regarding grant of bail to him or taking him into custody.
2. In the case of Suresh Vasudeva v. State, 1978 Cri LJ 677 at pp. 681-82 (Del), it was observed that S. 438(1) of Cr.P.C. applies only to non-bailable offences. The section itself especially prescribes that any order passed under this section would be effective only after the person concerned has been arrested. It does not require that the offence must have been registered. All that this section contemplates is that the person applying has reasonable belief that he may be arrested on accusation of having committed non-bailable offence. It will depend on the facts of each case whether the person applying could have the necessary “reason to believe”. This “reason to believe” is not dependent upon the registration of the case only.
3. In the case of K. Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933 at p. 1935 (AP), it has been held that the filing of an F.I.R. and registration of a crime by the police is not a condition precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under S. 438 of Cr.P.C.
Frequently Asked Questions
1. Is it possible to get anticipatory bail from the court even before the registration of F.I.R. by the police?
Anticipatory bail is granted under Section 438 of the Criminal Procedure Code (Cr.P.C.). It is not a condition precedent for invoking the provisions of this section that FIR should have been registered first. What Section 438 Cr.P.C. requires is that the applicant is apprehending his arrest on accusation of having committed a non-bailable offence. It is not necessary that at the time of applying for anticipatory bail, the police must have already registered the FIR. Anticipatory bail can be applied even before registration of FIR, provided there is a real apprehension of arrest on accusation of having committed a non-bailable offence.
2. Which Court can grant anticipatory bail ?
When any person apprehends that there is a move to get him arrested on false or trumped up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Anticipatory Bail can be granted by Sessions Court, High Court or the Supreme Court.
3. What are the Conditions for granting Anticipatory bail?
The High Court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
- a condition that the person shall make himself available for interrogation by the police officer as and when required;
- 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;
- a condition that the person shall not leave India without the previous permission of the court.
4. Can one travel abroad 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.
5. Can an Anticipatory bail be cancelled ?
At the time of granting the anticipatory bail the court imposes certain terms and conditions. If you do not follow these directions given by the court, the court may cancel your anticipatory bail. A request for cancellation of the anticipatory bail can be made by the opposite party or the police, in case you violate any of the directions imposed by the Court while granting you bail.
Edited by Sakshi Raje
 (2015) Cri.W.P. No. 725/14
 (2014) 8 SCC 273
 (2000) 10 SCC 7