Anticipatory Bail

Opinion Essay

Shivam Saksena- 20171282

Section E
The concept of Anticipatory Bail comes as a “Hero” for people who anticipate that they may
be wronged by a false FIR, which would lead to them being arrested. What this provision,
presented in Section 438 of the Criminal Procedure Code, does is give them the option of filing
a bail application before an FIR is filed against them, as long as they have reason to believe
that they may be arrested on the basis of the FIR. In this paper, we analyze the concept of
anticipatory bail, while focusing on how the courts interpret it and the problems which, in our
opinion, are present in its application.

Anticipatory bail was recommended in the 41st Law Commission report1. When it was first
introduced, the Commission refused to lay down the conditions under which anticipatory bail
would be granted as it would amount to ‘pre judging the whole case’ and thus left the court
with a lot of discretionary power. Moreover, a provision was created for the section, whereby,
if the bail is not granted, an officer in-charge of a police station could arrest the applicant on
the grounds, which s/he anticipated. The 48th Law Commission2 recommended certain
provisions, which were incorporated into the section’s provisos. The Commission
recommended that the courts could pass an interim order, however, a copy of the order along
with a notice would have to be given to the Public Prosecutor and the Superintendent of Police,
who could then object to the order. And only after both the sides were heard, would a final
order be passed.

Two landmark judgements with respect to anticipatory bail have been the Balchand v State of
MP3 and the Gurbaksh Singh Sibbia v State of Punjab4 cases. In the former, questions were
raised regarding the validity of Section 438 as it contravened with another statute, which
prevented its offenders from receiving any kind if bail. It was held that section 438 was valid,
however in procedures set out by statutes, which are different from the procedures of the CrPC,
the procedure of the statute in question will be followed. Apart from the limitation put on the
grant of anticipatory bail via the presence of a different procedure, the judges also opined that
anticipatory bail is to be given in exceptional circumstances. While in the Gurbaksh Singh
Sibbia case, the courts laid out certain rules regarding anticipatory bail. They stated that the
provision is to be used in a very limited manner, to be read with the limitations present in the
sections regarding bail. Moreover, the grant of this bail does not prevent the applicant from
being arrested on charges which the applicant failed to anticipate. Furthermore, in offences
punishable by life imprisonment or death and in matters relating to the larger interest of the
public and the State, anticipatory bail cannot be granted.
Article 21 of the Constitution of India gives the citizens the right to Life and personal liberty.
The word life in the article means a life of dignity. This article has received the widest possible
interpretation in the Constitution. In Maneka Gandhi v Union of India 5, it was held that the
right to life includes within its ambit a right to live with dignity. Right to reputation was held
as a necessary element under the ambit of Right to Life. Anticipatory bail provides the citizens
with a tool to live life without apprehension or fear of being falsely accused and arrested and
thus helps them function and carry out activities which constitute the bare minimum of human
expression and live a life with dignity. Section 438 of the CRPC also helps the citizens in
exercising their right to reputation as it helps them avoid the public humiliation of being
detained and thus harming their reputation in the society.

1
Law Commission Report, 1969, No. 41
2
Law Commission Report, 1972, No. 48
3
Balchand v State of MP 1977 SCR (2) 52
4
Gurbaksh Singh Sibbia v State of Punjab 1980 SCR (3) 383
5
Maneka Gandhi v Union of India 1978 SCR (2) 621
The 268th Law Commission report6, which recommended some amendments to bail provisions
in the CRPC, clearly stated that section 438 of the CRPC does not form a part of Article 21 of
the Constitution. The report speaks about how landmarks cases such as the Balchand case and
the Gurbaksh Singh Sibbia case held that s.438 is an extraordinary power only to be used in
exceptional circumstances. The courts also have a lot of discretionary power in granting
anticipatory bail. Therefore, the Law Commission insists that s. 438 is a privilege offered to
the citizens rather than a right they can demand from the state in all cases. Another argument
in favour of anticipatory bail being a privilege rather than a right is the fact that some separate
acts, such as Prevention of Atrocities Act, do not have the concept of Anticipatory bail. Thus,
anticipatory bail does not form a blanket order which can immunize the applicants from all
types of offences which s/he anticipates, as this would interrupt the investigation process.

One of the controversies surrounding section 438 of the CRPC is the time limitation. Recently,
the courts have been interpreting the section as a relief for limited duration. The law is very
vague and divergent regarding the duration for which anticipatory bail should be granted. The
Gurbaksh Singh Sibbia case was the first to look into the issue as it granted the court the power
to issue the anticipatory bail for a limited amount of time. However, this was not an absolute
rule and the court could also issue the bail indefinitely, as it was up to their discretion. However,
the courts have misunderstood this and have held that anticipatory bail is only granted for a
limited amount of time, which can be seen through various cases such as Somabhai Chaturbhai
Patel V. State7 where the Gujurat High Court held that if anticipatory bail was given for an
unlimited amount of time it would impede with the investigation process. The high court ruled
that after the expiry of the relief under s. 438, the accused would have to get bail the usual way.
This was reiterated in many cases including the Supreme court case of K.L Verma v. State8.

A huge problem associated with the grant of anticipatory bail, is that this trial becomes a trial
of the applicant’s innocence or guilt. This is the result of the standard and sufficiency of
evidence that the courts find permissible in granting bail. Since the “sufficient” evidence
criteria of the courts in cases of anticipatory bail hearing does not fall short of the satisfactory
evidence requirement of the final hearings of the accused’s guilt, the grant of bail not only
becomes extremely exceptional, but also essentially turns into the final verdict. Hence,
anticipatory bail becomes simply a textual provision in the CrPC, instead of a ground practice.
Judges can be said to refrain from giving anticipatory bail easily and on limited evidence, as,
if the bail is given, and later the applicant goes on to commit further offences, tamper with
evidence, threaten the potential informant etc., problems will arise during the investigation and
trial phases. Therefore, from the judge’s point of view, to ensure justice and maintain people’s
confidence in the judicial system, the grant of anticipatory bail has to be exceptional. The courts
reason out that it is only in “exceptional” circumstances and with “due vigilance” that bail
should be granted. Apart from the various cases, restriction is put on this provision via the other
sections present in the CrPC, such as the provisions present in Sections 41 (arrest) and 437.

In our opinion, anticipatory bail should be a right offered to the citizens rather than a
privilege, however, this right should be subject to limitations. The judiciary should have
enough restrictions to ensure there is no misuse of this section, especially in matters affecting
the larger interest of the public and the State. Thus, it should not be an absolute right, nor a
mere privilege, but a balance must be struck between the two. When it comes to the

6
Law Commission Report, 2017, No. 268
7
Somabhai Chaturbhai Patel v State (1977) GLR 131
8
KL Verma v State (1998) 9 SCC 348
controversy regarding anticipatory bail being given for a limited duration, we believe that the
reasoning courts use is flawed. Anticipatory bail comes into action once the applicant is
arrested, so for him/her to apply for normal bail then would be for no use as there is no
custody. Also, the court decided in the Gurbaksh Singh Sibbia that the judge ’may’ give
anticipatory bail for a limited amount of time. However, the courts misinterpreted it as an
absolute rule of giving anticipatory bail for a limited duration. Thus, the courts should use
their discretion to decide when to give anticipatory bail till the end of the trial and when to
give it for a limited duration, taking factors such as the investigation process into
consideration. Since we are arguing on the lines of anticipatory bail becoming a right with
limitations, the standard of evidence required to grant it should also be adjusted accordingly,
so the judges do not show a lot of restraint while granting it.