Laws Relating to Anticipatory Bail

A project submitted in partial fulfilment of the course Criminal Law II, Semester – IV
during the Academic Year 2017 – 18.

Submitted by

Sonu Shubham, 1651

BBA.LLB

Submitted to

Father Peter Ladis

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 ACKNOWLEDGEMENT

I am feeling highly elated to work on under the guidance of my Criminal Law faculty.
I am very grateful to him for the exemplary guidance. His assignment of such a
relevant topic made me work towards knowing the subject with a great interest and
enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my best
to bring more luminosity to this topic. I am overwhelmed in all humbleness and
gratefulness to acknowledge from the bottom of my heart to all those who have helped
me to put these ideas, well above the level of simplicity and into something concrete
effectively and moreover on time.
I also want to thank all my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant material regarding to my topic available to me at
the time of my busy research work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank the
library staff for working long hours to facilitate us with required materials going a
long way in quenching our thirst for education. I would also like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage
of my project.

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 TABLE OF CONTENTS
INTRODUCTION: .............................................................................................................................. 4
Objective of the Study: ............................................................................................................... 5
Hypothesis: ................................................................................................................................. 5
Research Methodology: .............................................................................................................. 5
Sources of Data: .......................................................................................................................... 5
Scope of the Study: ..................................................................................................................... 5
MEANING AND DEFINATION........................................................................................................ 6
Case Laws Which Have Elaborated the Provisions of The Anticipatory Bail: .......................... 6
INTERIM ANTICIPATORY BAIL: .......................................................................................... 6
AMBIT AND SCOPE................................................................................................................. 7
BAIL AND ANTICIPATORY BAIL: DISTINCTION ............................................................. 7
CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2005 (ACT 25 OF 2005) .......... 8
EARLIER POSTION .................................................................................................................. 8
AMENDED PROVSION............................................................................................................ 9
CONDITIONS OF ANTICIPATORY BAIL .................................................................................. 12
CONSIDERATIONS BY THE COURT .................................................................................. 12
PROCEDURE AND FORUM OF ANTICIPATORY BAIL ......................................................... 13
APPLICATION FOR ANTICIPATORY BAIL ....................................................................... 13
PRESENCE OF THE APPLICANT ......................................................................................... 13
NOTICE TO PUBLIC PROSECUTOR ................................................................................... 13
SUCCESSIVE APPLICATION ............................................................................................... 14
Rejection from Sessions Court .................................................................................................. 14
BLANKET ORDER ................................................................................................................. 14
FORUM .................................................................................................................................... 15
CANCELLATION OF ANTICIPATORY BAIL ........................................................................... 16
CONCLUSION .................................................................................................................................. 17
BIBLIOGRAPHY .............................................................................................................................. 19

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 INTRODUCTION:

There can be no presumption that the wealthy and the mighty will submit themselves to trial and that
the humble and the poor will run away from the course of justice, any more than there can be a
presumption that the former are more likely to commit a crime and the later are more likely to
commit it. Lord Russell said “It was the duty of magistrate to admit accused person to bail, whenever
practicable, unless strong grounds for supposing that such person would not appear to take their trial
.It was not the poorer class who did not appear, for, their circumstances were such as to tie them to
the place where they carried their work .They had not the golden wings with which they fly from
justice.
What does the word anticipatory bail not mean is to be understood first, to understand the whole
concept of Anticipatory bail. Anticipatory bail does not mean that bail be granted before arrest but
refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be
granted bail. The law lexicon defines bail as the security for the appearance of the accused person on
which he is released pending trial or investigation1.

Under the Criminal Procedure Code, 1973 (Cr.P.C.), there is no definition of “bail”, but the terms
bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as: "Bailable
offence means an offence which is shown as bailable in the First Schedule or which is made bailable
by any other law for the time being enforce, and non-bailable offence means any other offence". The
word ‘anticipatory’ labelling of the order can be misleading as it is not an order which grants a
person bail before he is arrested as bail cannot come into effect before a person is arrested. Having
said that, the fundamental difference between an order for regular bail and one for anticipatory bail is
to be understood in a proper perspective. The former is granted only after arrest (and becomes
operative subsequently) but the latter is granted (Order) before arrest and hence is operative from the
moment of arrest. One also must understand that regular bail comes into operation once a person is
remanded to judicial custody, but the anticipatory bail comes into operation immediately on arrest
and prior to being remanded to police custody and or judicial custody. The provision of Anticipatory
bail can be invoked if a person is apprehending arrest for commission of a non-bailable offence in
which the police are empowered to arrest the person accused of any crime or on suspicion of the
commission of a serious offence which requires the custody of the accused to conduct investigation.
The necessity of granting arises mainly because sometimes influential persons try to implicate their
rivals in false cases for disgracing them r for other reasons by getting them detained in jail for some
days.2

 

1
RAMANTH IYER, Law Lexicon, (3rd ed,2012)
2
41st Law Commission Report

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  Objective of the Study:
The researcher has undertaken this research to find

1. Provisions related to Anticipatory Bail

2. How it is implemented practically?
3. Who can take anticipatory bail?

 Hypothesis:

1. The researcher assumes that anticipatory bail cannot be claimed as a matter of right.
2. Also, that anticipatory bail grantee destroys the evidences that affects the trial procedure

 Research Methodology:

The researcher would like to follow doctrinal method for this research. The researcher will gather
data from both the primary and secondary sources. The researcher will start with explaining Bail,
which is money or some form of property that is deposited or pledged to a court, to secure the release
from jail of a suspect who has been arrested, with the understanding that the suspect will return for
their trial and required court appearances. Then the researcher will go on with explaining the
provisions of section 436 and 438 both the normal bail and anticipatory bail. The researcher will also
give the procedure and eligibility for granting this kind of bail along with for what kind of offence
this bail can be given.

 Sources of Data:
Primary sources Secondary sources
Legislative provisions Books
Case laws Newspapers
Magazines
Websites

 Scope of the Study:

The research will provide a stepping stone for further research. It will also be useful to the society as
the readers will come to know that how the provision is being used today, sometimes to protect and
sometimes to harass.

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 MEANING AND DEFINATION

The word “anticipatory bail” is not found in Section 438 or in its marginal note. In fact, “anticipatory
bail” is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants
“anticipatory bail”, what it does to make an order that in event of arrest, a person shall be released on
bail. Manifestly there is no question of release on bail unless a person is arrested, and, therefore, it is
only on arrest that the order granting “anticipatory bails” becomes operative. It has also been held
that anticipatory bail cannot be granted to a person to do something which is likely to be interpreted
as commission of a crime even if the offender intended it as something in exercise of his rights. The
expression “anticipatory bail” is convenient mode of conveying that it is possible to apply for bail in
anticipation of arrest. The Section, however, makes no distinction whether the arrest is apprehended
at the hands of the police or at the instance of the magistrate. The issuance of warrant by the
Magistrate against a person justifiably gives rise to such an apprehension and well entitles a person
to make a prayer for anticipatory.3 Issuance of summon for appearance also entitles an accused to
apply for anticipatory bail.4 Section 438 empowers the High Court and the Court of Session to grant
anticipatory bail.

 Case Laws Which Have Elaborated the Provisions of The Anticipatory Bail:

The law about anticipatory bail has been simplified in the landmark judgment of Gurbaksh Singh
Sibba vs. The State of Punjab5 and further the same has been reiterated now in 2010 in the judgment
of Siddharam Mhetre vs. State of Maharashtra6. These two case laws are an authority on the law of
anticipatory bail. Another landmark judgment on the point of anticipatory bail is that of Jagganath
vs. State of Maharashtra7.

Further there are also authorities which point out as to when anticipatory bail can be granted and
what are the various aspects which must be taken into consideration at the time of deciding
anticipatory bail applications.

 INTERIM ANTICIPATORY BAIL:

Let us assume that the applicant on an apprehension wishes to obtain anticipatory bail and thereby
files the same before the Court of Sessions. On filing of the anticipatory bail, the Public Prosecutor
now requires time to file his say and wants to consult with the police machinery on the point as to
whether custody is required or not. If the Public prosecutor required time to file his say and as well
say of the investigating authority, then in such circumstances there is a possibility that the police may
use this time to arrest the applicant. In such circumstances, the whole objective of the anticipatory

3
Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)
4
P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).
5
AIR 1960 SC 1632
6
2011(1) Bom. C.R. (Cri) 293
7
1981 Cr. L.J. 1808

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bail would be frustrated and hence the applicant can apply for interim anticipatory bail and the
Courts generally grant interim anticipatory bail.89

 AMBIT AND SCOPE

Section 438 empowers a High Court and a Court of Sessions to grant anticipatory bail. It is not as if
bail is presently granted by the Court in anticipation of arrest. But it means that in the event of arrest,
a person shall be enlarged on bail. This power is extraordinary in character and it is only in
exceptional cases where it appears that a person might 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 can
properly be exercised. This power being rather unusual in nature, is entrusted only to the higher
echelons of judicial service, namely a Court of Session and a High Court. It is a power exercisable in
case of an anticipated accusation of non bailable offence and there is no limitation as to the category
of non bailable offence in respect of which the power can be exercised by the appropriate court.

 BAIL AND ANTICIPATORY BAIL: DISTINCTION

The distinction between an ordinary bail and an anticipatory bail is that whereas the former is
available and granted after arrest, and therefore, means release of a person from the custody, the
latter is available and granted in anticipation of arrest and is therefore is active at the very moment of
arrest. Again, there is no warrant for reading into Section 438 anything to limit the discretion of the
court by invoking the considerations mentioned in Section 437(1). The discretion must exercise
judicially by a High Court or Court of Session considering the facts and circumstances of each case.

8
Menino Lopes vs. State of Goa

9
State of Maharashtra vs. KSS Rajput

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CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2005 (ACT 25 OF 2005)

 EARLIER POSTION
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Earlier section 438 read as:
“438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having
committed a nonbailable offence, he may apply to the High Court or the Court of Session for a
direction under this Section; and that Court may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes adirectiona 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 –

(i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;

(ii) 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 to dissuade him from disclosing such
facts to the Court or to any police officer;(ii) 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;

(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under subsection (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 issue in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the Court under subsection (1).

Since its conception, the concept of Anticipatory Bail has been under judicial scrutiny. The landmark
judgement on the subject is Gurubaksh Singh Sibbia v. State of Punjab10. The Supreme Court,
reversed the Full Bench decision of the Punjab and Haryana High Court in this case, which had given
a restricted interpretation of the scope of Section 438, held that in the context of Article 21 of the
Constitution, any statutory provision (Section 438) concerned with personal liberty could not be
whittled down by reading restrictions and limitations into it. The SC sought to remove unnecessary
restrictions when it came to bail provided under section 438. The Court also held that the conditions
subject to which the bail can be granted under section 437(1) should not be read into Section 438.

10
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565

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Section 438 (1) of the Code lays down a condition, which has tomust must be satisfied before
anticipatory bail can be granted.

The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable
offence. 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. Thirdly, the filing of a First Information Report
is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely
arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file. Fourthly,
anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been
arrested. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if
he wants to be released on bail in respect of the offence or offenses for which he is arrested11:-

 AMENDED PROVSION
The Section had been considered faulty by a number ofseveralseveral several Law commissions and
there were on-going discussions on its amendment, finally it was amended in 2005 by the Code of
Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) tot the effect that12:
(i) the power to grant anticipatory bail should be exercised by the Court of Session or the High Court
only after taking into consideration certain factors;

(ii) upon consideration of these factors, the Court will either reject the application or issue an interim
order for the grant of anticipatory bail in the first instance;

(iii) where the Court has rejected the application or has not passed any interim order, it will be open
to the officer-in-charge of a Police Station to arrest the applicant, without warrant, on the basis
ofbased onbased on based on the accusation apprehended in the application for the grant of
anticipatory bail;

(iv) where the Court makes an interim order for the grant of interim bail, it will forthwith give a
notice being not less than seven days’ notice to the Public Prosecutor and the Superintendent of the
Police with a view to give them an opportunity of being heard when the application is finally heard;

(v) the presence of the applicant seeking anticipatory bail will be obligatory at the time of final
hearing of the application if the Court considers such presence necessary in the interest of justice on
an application made by the Public Prosecutor for such presence.

Again, in the case of Gurubaksh Singh Sibbia v. State of Punjab13 it was said that the High Court and
the Court of Session must apply their mind with care and circumspection and determine whether the
case for anticipatory bail is made out or not. No blanket order of anticipatory bail can be passed by
any Court.

11
Ibid, pg. 589-590
12
LAW COMMISSION OF INDIA, Section 438 Of Thethe Code Ofof Criminal Procedure, 1973
As Amended Byby The Code Ofof Criminal Procedure (Amendment)
Act, 2005 (Anticipatory Bail), (Law Comm. Report 203, Dec 2007)
13
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565

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It can be said that the amended Section merely seeks to formalize certain aspects that are otherwise
being followed in practice without having been formally included in the Section. It needs to be borne
in mind that legislation is a sphere which is seldom perfectly complete. There may be conditions and
practices which escape formal translation into statutory laws yet, they continue to influence the
conduct of the organs of the State and their subjects. There may be conditions and practices which
escape formal translation into statutory laws but yet, they continue to influence the conduct of the
organs of the State and their subjects. Such conditions and/or practices may have been initiated in the
first instance in individual cases based on sound reasons, logic and rationale. Even though the
amended section 438 expounds upon the provisions required to be considered while granting
anticipatory bail, the Supreme Court has given guidelines for the same in the year 2009.

In the case of Savitri Agarwal and Others v. State of Maharashtra and Another,14 a Constitutional
bench of the Supreme Court issued guidelines which the courts had to keep in mind while they
decided upon the granting of anticipatory bail. Though the power conferred under Section 438 can be
described to have extraordinary character, but this does not justify the presumption that the power
must be exercised in only exceptional cases. Nonetheless, the discretion under the Section has tomust
be exercised with due care and careful understanding of the case and examine it on its merits.

Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be
satisfied that the applicant invoking the provision has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere
“fear” is not belief, for which reason, it is not enough for the applicant to show that he has some
sort of vague apprehension that an accusation may be made against him/her that might lead to arrest.
The court should be able to objectively examine the grounds on which the reasonable fear is based.
Specific events and facts must be disclosed by the applicant to enable the Court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of the exercise of power
conferred by the Section.Specific events and facts must be disclosed by the applicant in order to
enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua
non of the exercise of power conferred by the Section.
The observations made in Balchand Jain v. State of Madhya Pradesh,15 regarding the nature of the
power conferred by Section 438 and regarding the question whether the conditions mentioned in
Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no
warrant for reading into Section 438, the conditions subject to which bail can be granted under
Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences
like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for
life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the
Court is free to refuse anticipatory bail in any case if there is material before it is justifying such
refusal.

No blanket order of bail should be passed and the Court which grants anticipatory bail must take care
to specify the offence or the offences in respect of which alone the order will be effective. While

14
Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373
15
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366

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granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under
Section 438(2) to ensure uninterrupted investigation. One such condition can even be that in the
event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the
person released on bail shall be liable to be taken in police custody for facilitating the recovery.
Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the order was passed.

It has also been observed that an interim bail order can be passed under Section 438 of the Code
without notice to the Public Prosecutor, but notice should be issued to the Public Prosecutor or to the
Government advocate forthwith and the question of bail should be re-examined in the light of
respective contentions of the parties. The ad-interim order too must conform to the requirements of
the Section and suitable conditions should be imposed on the applicant even at that stage.

Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be
limited in point of time, but the Court may, if there are reasons for doing so, limit the operation of
the order to a short period until after the filing of FIR in respect of the matter covered by the order.
The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of
the Code within a reasonable short period after the filing of the FIR.

The provision can be used favourably by those who have been falsely accused and have the
knowledge that criminal allegations can be made on them and can approach the court for this
remedy. The law on anticipatory bail is mostly clear cut and devoid of doubts, but in the case of
anticipatory bail, which his mostly discretionary in nature, there cannot be any permanent principles
as decisions are made on case to case basis

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 CONDITIONS OF ANTICIPATORY BAIL

The following are the condition precedent to get anticipatory bail according to the
CODE OF CRIMINAL PROCEDURE, 1973, SECTION 438:
1. Apprehension of arrest should be shown for obtaining an anticipatory bail and
2. The apprehension should be that the offence that could be registered against the applicant is
of a non bailable offence and
3. Apprehension that the police might register a non bailable offence
4. There is no necessity of an FIR being registered against the person applying for anticipatory
bail.

 CONSIDERATIONS BY THE COURT

As per the facts of each case the circumstances would differ, but the general considerations would be
–

i) the Court should be convinced as to how there are chances that the applicant may be
falsely implicated in a crime-
ii) even if the applicant has a role to play it should be highlighted that the custodial
interrogation is not required-

iii) in case of documentary evidence – how the documents are in the possession of the
prosecution and how custody of the applicant would not serve any ends of the police –

iv) how there is no need of recovery of any document/weapon/incriminating article from the
possession of the applicant
v) how it would affect his/her liberty and would cause embarrassment in the society
vi) how the applicant has roots in the society
vii) that the applicant is a law-abiding citizen
viii) that there is no past criminal record
ix) how he/she has contributed towards the wellbeing of the society by various social acts
x) sole bread earner of the family/dependents
xi) any medical history – whether suffering from any ailment

xii) and last but the most important – how the applicant is ready to abide by all the conditions
put by the Court and how he/she would be ready to co-operate with the investigation.

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 PROCEDURE AND FORUM OF ANTICIPATORY BAIL

Section 438(2) is “really a machinery provision” for working out an order passed under Section
438(1). It envisages a situation where the court decides to proceed against the accused who has been
granted anticipatory bail. All subsequent steps must be in conformity with the order issued by the
Court under Section 438(1).

 APPLICATION FOR ANTICIPATORY BAIL

Law says Court of Sessions and the High Court have concurrent jurisdiction then in such cases.
The question is where to apply for the anticipatory bail? The application for anticipatory bail should
be generally made in the Sessions Court but there are instances where the anticipatory bails have
been directly granted by the High Court as the power to grant anticipatory bail is vested with
Sessions as well as High Courts. The proper approach would be to file an application in the Court of
Sessions, exhaust the remedy and then if the same is rejected then to move the High Court. If a
person files an anticipatory bail in the High Court first and his anticipatory stands to be rejected, then
it would be binding on the Sessions Court and that would be like waiving off your right to apply in
the Sessions Court.

 PRESENCE OF THE APPLICANT

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.

 NOTICE TO PUBLIC PROSECUTOR

There is no provision in Section 438 for issuing notice to public prosecutor and hearing by the court
before granting anticipatory bail. However as held by the Supreme court, a notice should be issued to
the Public16 Prosecutor or the government advocate before passing final order granting anticipatory
bail. Therefore, if there are circumstances justifying ex-parte interim order, the court may pass final
order after hearing both sides.

It may, however may be stated that sub-section (1A) of section 438 as amended by the Code of
Criminal Procedure (Amendment) Act, 2005, now expressly provides that before finally deciding an
application for anticipatory bail, the court will hear the Public Prosecutor.

Malimath committee has observed in its report that the provision as to anticipatory bail has been
misused by rich and influential people. The committee however opined to retain the provisions
subject to two conditions:

1-Public prosecutor should be heard by the court before granting an application for anticipatory bail
and 2- Petition for anticipatory Bail should be heard only by the court of competent jurisdiction.

16
Gur Baksh Singh v. State of Punjab

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It may be stated that section 438 (1), as amended by the Code of Criminal Procedure (Amendment)
Act, 2005 now provides for hearing of Public Prosecutor before granting an application for
anticipatory bail, it shall forthwith cause a notice being not less than seven days’ notice together with
a copy of such order.

 SUCCESSIVE APPLICATION
A second application after rejection of the first one under Section 438 is maintainable if there are
additional facts, further developments and/or different considerations.

Rejection from Sessions Court

Let us assume that the application for anticipatory moved in the Sessions Court is rejected and the
applicant still apprehends that before moving his bail application in the Hon’ble High Court, the
police arrest the applicant, in such instances well the lawyer can move an application praying for
interim protection to be extended till filing of the same before the High Court. 17 But, this is a
discretionary power in the hands of the Sessions Judges and needs a good argumentative skill.
Lastly the most important thing is that anticipatory bail should not be moved merely because the
applicant feels to do so because it is not the provision which allows the crime to be committed and
the protection be given but only in cases where there is a substantial chance of the applicant being
falsely involved or the liberty of the applicant shall stand at stake for no fault of his own.

 BLANKET ORDER
A blanket order of anticipatory bail 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. Such a blanket order of anticipatory bail should not
generally be granted. Since the section requires the applicant to show that he has “reason to believe”
that he may be arrested, such belief must be formed only if there is something tangible to go by
based on which it can be said that the applicant s apprehension is genuine. Normally, therefore, a
direction should not ‟ be issued under Section 438(1) to the effect that the applicant should be
released on bail “whenever arrested for whichever offence whatsoever.” A blanket order of
anticipatory bail is bound to cause serious interference with both the right and the duty of the police
in the matter of investigation because, regardless of what kind of offence is alleged to have been
committed by the applicant and when, an order of bail which comprehends allegedly unlawful
activity of any description whatsoever, will prevent the police from arresting the applicant even if he
commits, say, a murder in the presence of the public. Such an order can then become a charter of
lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be
predicated when the order was passed. Therefore, the court which grants anticipatory bail must take
care to specify the offence or offences in respect of which alone the order will be effective.

17
KSS Rajput vs. State of Maharashtra

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  FORUM
Section 438 confers concurrent jurisdiction of granting anticipatory bail on High Court and Court of
Session. The power being unusual in nature is entrusted only to the echelons of judicial service.
Some High Courts have taken the view that ordinarily, a Court of Sessions must be first moved by an
applicant. It is, however, submitted that when concurrent power is conferred on the High Court as
well as on the Court of Session, no such restriction can be read in Section 438. Again, some High
Courts have held that after the Court of Sessions rejects an application, an applicant cannot move the
High Court for same relief unless circumstances have changed. It is submitted that this view is
erroneous.

The High Court of Karnataka rightly observed:18 “Of course, there can be no doubt as that in the
hierarchy, Court of Session is subordinate to the High Court; a party who makes an application under
Section 438 of the code before the Sessions Court could approach the High Court, if his application
had been rejected by the Court of Session, but not vice versa. In other words, if the party chooses to
file an application under Section 438 of the Code before the High Court and it is rejected, he cannot
thereafter approach the court of Session under the same provision and on the same grounds”

18
Chandra Erappa v. State

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 CANCELLATION OF ANTICIPATORY BAIL

Anticipatory Bail granted by the High Court can only be cancelled by it and not by the Magistrate or
the Session Judge.19 Normally, very cogent and overwhelming grounds or circumstances are required
to cancel the bail already granted.20

1. An order granting anticipatory bail under section 438 or bail under section 439 (1) is amenable to
appellate provisional scrutiny and may be cancelled if it was made in arbitrary or improper (and not
judicial) exercise of the discretionary power or was made without application of mind or without
consideration of all relevant circumstances or was based upon irrelevant considerations or was
vitiated by any basic error of law or was otherwise perverse.

2. An order granting bail may be cancelled in case new of supervening circumstances arise after the
release on bail such as abuse of the liberty by hampering the investigation or tampering with
witnesses or by committing same or similar offence but existence of any supervening circumstance
following the grant of anticipatory bail or bail is not the only criterion for cancelation of such bail.21

3. Although the discretionary power to cancel bail is extraordinary and is to be exercised sparingly,
nevertheless, it is meant to be exercised in appropriate cases, however few those cases might be.

4. Order granting anticipatory bail or bail must not tantamount to interference with efficient exercise
of statutory functions when dealing with economic offences such as those under the fear.
5. Advantage of custodial interrogation should be considered in granting anticipatory bail or bail.

6. Anticipatory bail may be cancelled under section 439(2) of Code of Criminal Procedure if the
accused is found to be tampering with prosecution evidence.22 Very cogent and overwhelming
circumstances are necessary for an order seeking cancelation of bail.23 The cancelation of
anticipatory bail already granted can be ordered only when the accused has interfered with the course
of justice by tampering with the evidence or has misused or abused his privilege.24
Can the Anticipatory Bail once granted be cancelled by the Court?

Yes, if the Court which has the power to grant anticipatory bail also has the power to cancel the same
if the prosecution/police authorities are able to show as to how the person released on anticipatory
bail is not abiding by the conditions put down by the Court and also if the person given the benefit of
anticipatory bail is not co-operating with the police authorities for investigation.

19
Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
20
Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
21
A. K. Murumu v. Prasenjit Choudury, 199 Cr.LJ 3460
22
Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
23
Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
24
Vishwanath Tiwari v. State, 1988 Cr.L.J. 333 (Pat)

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 CONCLUSION

At the end of this report the first hypothesis which the researcher earlier assumed stands proved that
the anticipatory bail cannot be claimed as a matter of right instead it depends on the discretion of the
court, and as for the second hypothesis there are provisions to prevent this and it is up to the court’s
discretion so examine the facts and circumstances of the case before giving anticipatory bail so that
the grantee of bail does not destroy the evidence. Besides that, any power that is based on discretion
will always have the suspicion of an element of ambiguity and the chance of arbitrariness. The
factors for consideration in dealing with anticipatory bail applications as are now mentioned in the
new Section are only illustrative in nature and the same, along with other relevant factors are indeed
being taken into consideration while making final orders on such applications although these have
not been expressly incorporated in the pre-amended Section. Just as in the case of discretion when it
comes to the choice between life imprisonment and the death penalty, the decision emanating from
such an exercise of discretionary power shall always be circumspect. Bail i.e. a direction to release a
person on bail issued even before the person is arrested.

As mentioned previously, anticipatory bail is a provision in favour of the liberty and freedom of
people accused of crimes. While the courts have given detailed guidelines on application of the
provision, but the same is not applied strictly in practise. Besides this issue, the 203rd Law
Commission Report too suggested certain recommendations one of which being that an explanation
should be inserted clarifying that a final order on an application seeking direction under the section
shall not be construed as an interlocutory order for the purposes of the Code

In State of Rajasthan v. Bal Chand , Justice Krishna Iyer observed: “The basic rule may perhaps be
tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating other troubles in the shape of repeating offences or
intimidating witnesses and the like by the petitioner who seeks enlargement on bail from Court.” The
practical problem of anticipatory bail is that it is often observed especially in the case of influential
accused that despite conditions that prohibit any intimidation and harassment of the victim the
accused or his/her representatives attempt to do the same.

It is submitted that the following observations of Chandrachud CJ in Gurbak Singh v. State lay down
correct law regarding exercise of power to grant anticipatory bail under Section 438 of the code,
therefore are worth quoting:

“It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the
proposed accusation appears to be actuated mala fides; and equally, that anticipatory bail must be
granted if there is no fear that the applicant will abscond. There are several other considerations, too
numerous to enumerate, the combined effect of which must weigh with the court while granting or
rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the
events likely to lead the making of charges, a reasonable possibility of the applicant s presence not
being secured at the ‟ trial, a reasonable apprehension that the witness will be tampered with and “
the larger interests of the public or the State” are some of the considerations which the court has to
keep in mind while deciding an application for anticipatory bail.”

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Thus, it can be said that there may be situations where arrest and detention may be unjustified, and
these powers are sometimes misused. Therefore, a duty is cast on the court in such situations to
examine the facts carefully and to ensure that no prejudice is caused to the investigation. It is delicate
balance whereby the liberty of the citizen and the operation of the criminal justice system have both
to be equally safeguarded. Where it is pointed out that the action is mala fide or tainted the courts are
required to do justice by preventing harassment and unjustified detention. The court must keep in
mind while deciding an application for anticipatory bail the nature and seriousness of the proposed
charges and the larger interests of the public or the state.

Lastly I would personally like to state that the weapon namely the anticipatory bail which has been
vested in the hand of the litigants, is for sure a double edged weapon which requires to be handled
very cautiously as it make give relief to the one who really makes out his case but can be really harsh
if the same stands rejected and would prove a boon to the investigating authorities.

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 BIBLIOGRAPHY

Legislations and Bills

1. The Code of Criminal Procedure, 1973

2. The Code of Criminal Procedure (Amendment) Act, 2005

Books, Reports

1. RAMANTH IYER, Law Lexicon, (3rd ed,2012)

2. Black's Law Dictionary, 177 (4th ed.)

3. R.V. KELKAR, Criminal Procedure, (5th ed. 2008)

4. RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, (19th ed. 2013)

5. LAW COMMISSION OF INDIA, Section 438 Of the Code of Criminal Procedure, 1973, As
Amended by The Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail),
(Law Comm. Report 203, Dec 2007)

Internet

• https://indiankanoon.org/

• https://www.netlawman.co.in

• https://www.lawcommissionofindia.nic.in

• https://www.legalserviceindia.com

• https://www.lawhandbook.org

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