Anticipatory bail
• Granted on anticipation of arrest
• Non- bailable offences
• Comes into effect after arrest
• release a person on bail even before arrest
• couldn’t be claimed as a matter of right
• vests only in HC and court of sessions
• no need for FIR for granting of anticipatory bail.
• But the reason to believe must be strong and it must not be a mere suspicion
• Can be invoked before arrest but can’t be invoked after arrest
• No provision for anticipatory bail in old CrPC
Rationale: Personal liberty mustn’t be jeopardise on instances of unscrupulous and irresponsible
persons
In Parvinderjit Singh V. State it was held that an order u/s 438 is a device to secure ind. Liberty,
neither is a passport to the comm of crimes nor a shield against any and all kinds of accusations likely or
unlikely.
Section 438:
438. Direction for grant of bail to person apprehending arrest.
- [(1) Where 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 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:-
➔ the nature and gravity of the accusation;
➔ 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 cognisable offence;
➔ the possibility of the applicant to flee from justice; and
➔ 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 a warrant, the
applicant on the basis of the accusation apprehended in such application.
(1-A) 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.
(1-B) 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]
[Substituted by Act 25 of 2005, Section 38, for sub-Section
(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--
❖ a condition that the person shall make himself available for interrogation by a 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;
❖ 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, he shall be released on bail; and if a Magistrate taking cognizance of such
offence decides that a warrant should be issued in the first instance against that person, he shall
issue a bailable warrant in confirmity with the direction of the Court under sub-section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of
having committed an offence under sub-section (3) of section 376 or section 376AB or section
376DA or section 376DB of the Indian Penal Code (45 of 1860).]
Diff b/w ordinary bail and anticipatory bail
Leading case Laws:
1. Balchand jain v state of m.p.
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.”
2. HDFC Bank Ltd. V J.J. Manan
It was held that Object of Section 438 of the code is that a person should not be harassed or
humiliated in order to satisfy the grudge or personal vendetta of the complainant. Once the
investigation makes out a case against a person and he is included as an accused in the
charge-sheet, the accused has to surrender to the custody of the court and pray for regular
bail.
3. Gurubaksh singh Sibbia v. State of Punjab
Facts : Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress
Ministryof the Government of Punjab. Grave allegations of political corruption were made
against him and others whereupon, applications were filed in the High Court of Punjab and
Haryanaunder Section 438, praying that the appellants be directed to be released on bail.
Full Bench of the Punjab and Haryana High Court by its judgment dated September 13, 1977
dismissed application for anticipatory bail.
The Court observed that main function of Court was to make balance between right to liberty
and investigating powerof investigating authority.
In this case, the Supreme Court discussed the following important points –
• Distinction between section 437 and section 438
The nexus which this distinction bears with the grant or refusal of bail is that in cases falling
under Section 437, there is some concrete data based on which it is possible to show that
there appear to be reasonable grounds for believing that the applicanthas been guilty of an
offence punishable with death or imprisonment for life. In case falling under Section 438
that stage is still to arrive and, in the generality of cases thereunder, it would be premature
and indeed difficult to predicate that there are or are not reasonable grounds for so
believing. Section 438 is much wider than to section 437. Conditions of section 437 cannot
be transplanted into section 438. The expression “if it thinks fit”, which
occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is
conspicuously absent in Section 437(1).
• Reason to believe
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.
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 based 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.
• ‘Blanket order’ of anticipatory bail
‘Blanket order’ of anticipatory bail should not generally be passed. Blanket order is an order
which serves as a blanket to 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.
• FIR and Anticipatory bail
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 FIR is not yet filed. Anticipatory bail can be granted even
after an FIR is filed, so long as the applicant has not been arrested.
• After arrest and anticipatory bail
The provisions of Section 438 cannot be invoked after the arrest of the accused. 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.
• Duration of anticipatory Bail
The Supreme Court observed that if once an anticipatory bail had been taken no need to
apply for regular bail. There is no time limit. It will continue till the trial unless it is cancelled.
If Court wants to limit, timing of anticipatory bail, court can do expressly. The Constitutional
Bench said, “The normal rule should be not to limit the operation of the order in relation to a
period of time”.
Judgement : Decision of High Court is set aside and appeals allowed
• Sushila Aggrawal V. State
FACTS OF THE CASE: In the light of the conflicting views of the different Benches of varying strength
regarding the scope of Section 438 of the CrPC, which provides for grant of anticipatory bail and its
limitations, a Special Leave Petition was filed before the Supreme Court. The question that was put
forth before the Supreme Court by way of a Special Leave Petition was heard by a constitutional
bench headed by Justice Kurian Joseph as it noted contradictory views in earlier judgments as to
whether an anticipatory bail should be for a limited period of time or not.
Issues : The following questions were referred by the Full Bench before the Constitutional Bench
for consideration by a larger Bench:
1. Seeking of Regular Bail - Whether the protection granted to a person under Section 438Cr.P.C.
should be limited to a fixed period so as to enable the person to surrender beforethe Trial Court
and seek regular bail.
❖ Supreme Court holds that the protection granted to a person under Section 438 Cr. P.C. should
not invariably be limited to a fixed period; it should inure in favour of the accused without any
restriction on time.
❖ Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there
are specific facts or features in regard to any offence, it is open for the court to impose any
appropriate condition (including fixed nature of relief, or its being tied to an event) etc
2. Effect of summons issued by Court - Whether the life of an anticipatory bail should end atthe
time and stage when the accused is summoned by the court.”
❖ Supreme Court observed, “As regards the second question referred to this court, it is 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 court laid down following points that has to be kept in mind by the courts while dealing with
applications under section 438 of the Cr.P.C.:-
a) The applicationshould be based on concrete facts such as relating to the offence, and why the
applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general
allegations, relatable to one or other specific offence.
b) Application for anticipatory bail could be filed by a person before the FIR (First Information
Report) as soon as the facts make clear there is a substantial reason for the arrest.
c) Depending on the seriousness of the threat of arrest, the Court should issue notice to the
Public Prosecutor and obtain facts, even while granting limited interim anticipatory bail.
d) The Court held that nothing in Section 438 of Cr.P.C. compels or obliges the Court to impose
conditions limiting relief in terms of time or upon filing of FIR or recording of statement of
witness.
e) The Court while granting anticipatory bail, should examine the seriousness and gravity of the
offence (like nature of the crime, material placed on records, etc.) to impose any conditionon the
petitioner, if necessary.
f) Anticipatory bail can be continued after filing of charge sheet till the end of the trial.
g) An order granting anticipatory bail cannot operate in respect of a future incident that involves
commission of an offence and thus, should not be 'blanket' order.
h) The anticipatory bail does not in any manner restrict or limit the rights or duties of police or
investigating agencies. It also laid down that it is open for the police or investigating agency
under Section 439(2) to move to the court to arrest the accused in certain cases
i) The correctness of an anticipatory bail order is open to be considered by an appellate or
superior court on the request of the investigating agency or the state and the order may be set
aside on the ground of non-consideration of material facts and crucial circumstances, doing so
does not amount to cancellation of the order but is rather equivalent to setting it aside.
