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Anticipatory bail is not defined in the CrPC however, the first mention of the term can be said to be in the 41st Law Commission Report, 1969. The commission believed that an accused must have a provision that helps them if they believe they will be arrested for any offence which is non-bailable in nature. (Mondaq, Para 1)

The Parliament while enacting the Criminal Procedure Code, 1973 added the same in Chapter 33 under Section 438. The section states that when a person has any reason to believe they can be arrested on accusation of having committed a non-bailable offence. The person in question may apply to the High Court or the Court of Session in the event he shall be released on bail (indiacode). In actual fact, ‘anticipatory bail’ is a ‘misnomer’ as it is not a type of bail that is granted in anticipation of arrest. When an application is made for the same, the Court makes an order that in the event of arrest, that person shall be released on bail (RV Kelkar’s CrPC, Page 441). In Bhadresh Bipinbhai Sheth v State of Gujarat (2016) 1 SCC 152, the Honourable Supreme Court held that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty.

Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail 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."

A person can apply for anticipatory bail even if it is an issuance of a summons for appearance. In Vinay Potdar v State of Maharashtra 2009 ALL M.R (Cri.) Page 687, Supreme Court held that if a victim of the offence appeared in the court seeking permission to be heard, then an opportunity must be given to them.

Although earlier there were no provisions for anticipatory bail, its origin dates back to mediaeval times, when the first known drafted constitution was enacted in the year 1215 by King John of England and was referred to as “Magna Carta”.

Anticipatory bail was enacted from clause 39 of Magna Carta which roughly translates to “no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgement of his equals or by the law of the land” (Mondaq, Para 3).

Section 438 has three sub-sections. The first part states that a person can apply for anticipatory bail if he has a reason to believe that he may be arrested on being accused/accusation of having committed a non-bailable offence. It further provides that that person can move to a High Court or Court of Sessions.

However, the court must be cautious before granting bail. Further, if an anticipatory bail application is rejected by the concerned court, then the investigating agency is open to arrest the said applicant without warrant on the basis of the accusation apprehended in such application. In the amendment in 2005 sub-section 1b was also added which provided that if an anticipatory bail is pending in a court and if the public prosecutor makes an application in the concerned court, then the presence of the applicant is required during the final hearing or at the time of passing the final order. And if the court finds it necessary to allow the same then presence of the applicant becomes a legal obligation (Mondaq, Para 11).

Before an application is considered by the Court it is not necessary to send a notice to the Public Prosecutor and it is legally allowed to pass an ex parte order of anticipatory bail. However, an order of anticipatory bail should not be passed without issuing notice to the Public Prosecutor and giving them an opportunity to oppose the application. If making the ex parte order is justified then a short-dated notice is issued to the prosecution and the bail should be re-examined in the light of the respective contentions of the parties. If the apprehension of a person continues even at the stage of committal court proceedings, they can still apply for anticipatory bail. On such an occasion the High Court or the Court of Sessions may pass an order under Section 438 ordering the Magistrate not to commit the person in custody to the court of sessions. (RV Kelkar’s CrPC, Page 448, Para1)

In Balchand jain v State of MP (1976) SCC 572:1976 SCC, a three-judge bench, considering whether an order of anticipatory bail can be competently made by a High Court and Court of Sessions stated that it is a provision that must be resorted to only on special cases. Further added that it would be desirable when the Court issues a notice to the prosecution to get a clear picture of the entire situation. In cases covered by Rule 184 of the Rules exercising power under Section 436 or Section 438 of the CrPC, the Court must comply with clauses (a) and (b) of Rule 184, and only after complying with them must the Court grant anticipatory bail (RV Kelkar’s CrPC, Page 445 Para 3).

Sub-section 2 provides certain conditions which need to be put on the applicant while granting him interim protection. The conditions laid down are

i) The person must make himself available for police interrogation as and when required

ii) The person shall not make any direct or indirect inducement, threat or promise to any person acquainted with the facts of the case dissuading him to disclose any of such facts to the Court or police officers

iii) The person must not leave India without permission of Court

iv) Any other condition as imposed under Section 437 (3), if bail is granted under it.

Therefore, the main prerequisites for granting an anticipatory bail are that the offence must be a non-bailable offence and that there should be grave apprehension that the accused will be arrested by the police authorities for a non-bailable offence. (indiacode, Section 438(2))

Now, subsection 3 provides that if the application under this Section is provided and that person is still arrested then he must be released on bail immediately (indiacode, Section 438(3)). If a Magistrate takes cognizance and issues a warrant against such persons then it shall be a bailable warrant. However, an anticipatory bail cannot be invoked after the arrest of the accused. Anticipatory bail is given before the arrest of a person and granting the same will be a contradiction of the term. After the arrest, the accused must find remedy under Section 437 or 439 of the CrPC if they want to be released on bail for the offences they were arrested for.

Section 438 does not mention till when an anticipatory bail shall be effective, that whether it is effective till a particular stage or till the filing of challan.

As soon as a person is enlarged on bail on the directions of anticipatory bail the effect starts and ends till the trial is concluded or the Court cancels it under Section 437 (5) or under Section 437(a) of the Code. It is to note that filing of challan in the Court is in itself no ground to cancel the bail (RV Kelkar’s CrPC, Page 448, Para 3). This was decided under Sushila Agarwal v State of Delhi 2020 SCC OnLine SC 98, the Supreme Court held that “the protection granted to a person under Section 438 of CrPC must not be invariably limited to a fixed period……the life or duration of an anticipatory bail 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”. The Hon’ble Court was cautious while ‘granting discretionary powers to the Court to limit the tenure of the said bail in case of special or peculiar facts.’ (indiankanoon, Para 4-7)

This article is written by Kareena Eugene of The Institute of Chartered Financial Analysts of India, Dehradun.

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