LAW ON BAIL- PART II: ANTICIPATORY BAIL

A comprehensive analysis of section 438 Cr.P.C., the law of anticipatory bail from Gurubaksh Singh Sibbia to Sushila Aggarwal.

By Megha Chaturvedi, Associate H.K. Law Offices

A person accused of committing a non-bailable offence and who has reasons to believe that he may be arrested in such crime, can apply to the Court of Sessions or High Court for grant of pre-arrest bail. Unless there are special or extraordinary circumstances, one cannot directly approach the High Court. Ordinarily one has to approach the Court of Sessions in the first instance. However, there is no bar in filing the second or successive application for anticipatory bail. 

Section 438 (Direction for grant of bail to person apprehending arrest)- Section 438 of Cr.P.C. deals with the provision relating to “Direction for grant of bail to person apprehending arrest” which is also known as ‘Anticipatory Bail’. 

Under section 438 of Cr.P.C., the High court and Court of Sessions have concurrent jurisdiction to grant Anticipatory bail. According to section 438, an ‘Anticipatory Bail’ may be granted by a court of session or High Court when a person has reasonable apprehension of arrest in a non-bailable offence. Thus, under this section a person may apply for bail before High Court or Court of Session where he has reasonable apprehension of arrest in a non-bailable offence and the High Court or Court of Session may grant bail with a direction that the person apprehending arrest may be released on bail “In the event of arrest”.

It is notable that this provision of ‘Anticipatory Bail’ has not been in existence since inception of criminal law and procedure but subsequently it was seen that some influential persons falsely implicated their rivals in criminal cases and thus, they had to land in jail for a few days which lowered down their prestige and reputation in the society. Therefore, the provision of ‘Anticipatory Bail’ was introduced in the Criminal Procedure Code (1973) with a view to protect the prestige of those persons who used to become the victim of false implication in a criminal case.

Section 438(1) of The Criminal Procedure Code lays down a condition which has to 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. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. 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 on the basis of 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.[1]

CONDITIONS WHICH MAY BE IMPOSED BY COURT:

Section 438(2) confers power upon High Court or Court of Session to impose some conditions. Thus, according to section 438(2) Cr.P.C., the Court may impose following conditions in the light of the facts and. circumstances of a particular case at the time of granting bail:-

1.      The person shall make himself available for interrogation by a police officer as and when required;

2.      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;

3.      The person shall not leave India without the previous permission of the Court;

4.      Such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.[2]

Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be by-passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender.[3]

Whereas, the Hon’ble Supreme Court of India in the Constitutional Bench decision of Gurbaksh Singh Sibbia Etc vs State Of Punjab[4] has clarified the Scope of Judicial balancing of personal liberty and the investigational powers of the Police in following points:

  • Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
  • Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
  • Thirdly, 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 F.I.R. is not yet filed.
  • Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
  • Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. 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.

“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. The power should not be exercised in a vacuum.”

However, on a contrary note, a single judge bench of the Supreme Court of India in the case of Salauddin Abdulsamad Shaikh vs The State of Maharashtra[5]observed that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 

The above noted contention of granting anticipatory bail u/s 438 Cr.P.C was dissented and overruled by Division Bench of Hon’ble Supreme Court of India in case of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors[6] where it was held that the grant of bail for limited period is contrary to the legislative intention and law declared by the Constitution Bench in case of Gurbaksh Singh Sibbia observing that the restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The Hon’ble Division Bench of the Supreme Court of India held that-

“121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.”

The confusion and rift came to an end after the reference made to Constitutional Bench of Supreme Court of India in case of Sushila Aggarwal v. State of NCT of Delhi[7] was answered and the law of Anticipatory Bail u/s 438 Cr.P.C. was dealt elaboratively and exhaustively. 

The following questions were referred for consideration by the Constitutional Bench of Hon’ble Supreme Court of India:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”

The Hon’ble Constitutional Bench of Supreme Court of India has held:

“(1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC 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) 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.

1. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence…….. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest…

(5) Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­-arrest bail.

(8) The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.” 

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non­ cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. 

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors(and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent decisions.


[1] Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632, 1980 SCR (3) 383)

[2] Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC Online SC 98

[3] Salauddin Abdulsamad Shaikh vs The State of Maharashtra (1996 AIR 1042, 1996 SCC (1) 667)

[4] (1980 AIR 1632, 1980 SCR (3) 383)

[5] (1996 AIR 1042, 1996 SCC (1) 667) SUPREME COURT

[6] CRIMINAL APPEAL NO. 2271 of 2010, Arising out of SLP (Crl.) No.7615 of 2009.

[7] 2020 SCC Online SC 98

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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