ANTICIPATORY BAIL: CRITICAL ANALYSIS
Author: Ms. Deepsi Rawat, Law College Dehradun 
It is better that ten guilty persons escape than that one innocent suffers. -Blackstone
Fundamental rights are the most celebrated Constitutional rights of a citizen of India. The provision of bail is a step towards ensuring the liberty and life of an accused. Section 438 makes a provision enabling the superior courts to grant anticipatory bail, i.e. a direction to release a person on bail issued even before the person is arrested. Recognizing the need for such a provision the Law Commission observed in its Forty-First Report that:
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. Apart from false cases, where 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, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”
In its subsequent report, the Law Commission expressed the view that the power to grant anticipatory bail should be exercised in very exceptional cases .
The term “anticipatory bail” is nowhere defined in the Criminal Procedure Code. Anticipatory bail is granted in anticipation of being arrested in relation to a non-bailable offence. Anticipatory bail the applicant approaches the High Court or Session Court for granting, on anticipation of him being charged with a non-bailable offence, bail prior to the issue of warrant or him being arrested. When the court grants “anticipatory bail”. What it does is to make an order that in the event of arrest, a person shall be released on bail.
ANALYSIS OF SECTION 438 IF CRIMINAL PROCEDURE CODE.
Section 438 provides direction for grant of bail to person apprehending arrest. The following points can be made out of section 438
- REASONABLE APPREHENSION OF ARREST FOR A NON-BAILABLE OFFENCE
Section 438 contemplates that an application for anticipatory bail can be made only for non-bailable offence and that there should be reasonable grounds for believing that he/she will be charged with that non-bailable offence. If the offence is non-bailable, it is immaterial for the purpose of Section 438 whether the offence is cognizable or non-cognizable. The reason for apprehension must be based on some reasonable ground, mere fear or belief does not amount to a reason to believe. The reason to believe should be such that it can be 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.
- GROUNDS FOR CONSIDERATION
(i) the nature and gravity of the accusation;
(ii) 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 cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
- CONDITIONS THAT MAY BE INCLUDED IN THE ANTICIPATORY BAIL.
(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 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 sub-section (3) of section 437, as if the bail were granted under that section.
- NOTICE TO THE PUBLIC PROSECUTOR AND SUPERINTENDENT OF POLICE
Section 438 (1-A) provides for the service of notice, not less than seven days, to the Public Prosecutor and Superintendent of Police in order to give an opportunity to the public prosecutor to present his case before the final disposal of the application for anticipatory bail.
- PRESENCE OF 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.
There is no such mention in Section 438 which would give an insight as to the duration until which anticipatory bail is granted. The bail shall be effective till the conclusion of trial unless it is canceled by the court taking action under Section 437(5) or under Section 439(2) of the Code of Criminal Procedure on the grounds known to law, and filing of challan in the court is by itself no ground to cancel the bail.
According to Section 438(1), an application for anticipatory bail is made to the High Court or the Court of Session. There is no specific mention in Section 438 as to where the application for anticipatory bail first lies. However, it is normally presumed that the Court of Session would be first approached for the grant of “anticipatory bail” unless an adequate case is made out for straightaway approaching the High Court directly without first coming before the Court of Session. Where the application of anticipatory bail is rejected by the Court of Session then a fresh application can be made in the High Court, there is no bar in making an application to the higher court.
The Court within whose jurisdiction the arrest has been apprehended has the jurisdiction to admit the application of anticipatory bail. The opinions expressed by the Supreme Court in some cases seem to favor the view that the question of granting anticipatory bail to any person who is allegedly concerned with the offence must for all practical purposes be considered by the courts within whose territorial jurisdiction such offence could have been perpetrated.
DISCRETION OF THE COURT
The words “may, if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred very wide discretion on the High Court and the Court of Session to grant anticipatory bail.
The power to grant anticipatory bail should be exercised cautiously and in exceptional cases only. The Court must satisfy itself that grant of the anticipatory bail is the utmost requirement of the applicant in order to safeguard his legitimate rights. Although the power appears to be unguided, it is in fact required to be exercised subject to limitations imposed by Section 437 on the power of granting bail. In addition to the limitations incorporated in Section 437, the petitioner must make out a special case for getting anticipatory bail.Reasons must be provided for the use of this discretionary power. Indirect use of the power to grant bail would be an abuse of the judicial process and would shake the confidence of the general public in the judiciary.
The purpose of the grant of anticipatory bail is to protect the life and liberty of the appellant and to protect him from unnecessary trauma and defamation of frivolous and false charges and arrest. This kind of bail provides an opportunity to a person, who having the reasonable belief of apprehension, approaches the court of law to protect his fundamental right of life and liberty. Anticipatory bail serves to be a blessing where the rival parties in the political system of the country try to falsely charge the opposition for mere cause of vote.
Anticipatory bail requires careful and cautious scrutiny. The learned judges High Court and Session Court allow the application for grant of anticipatory bail only after careful examination and consideration of the facts and situations of the case ensuring that there is no abuse of the provisions of anticipatory bail. Provided, the notice to the Public Prosecutor also ensures that the other party is given a say in the matter and that the matter is not disposed of ex-parte.
The grant of anticipatory bail can be allowed even in the absence of the applicant. It is only if the public prosecutor applies to the court for the appearance of the applicant it becomes mandatory for him to appear. Restrictions and conditions can be imposed by the court granting the anticipatory bail ensuring supervision and control over the appellant by the authorities to ensure no abuse of the provision and upholding the criminal justice system.
B.B.A. LL.B. (Hons.), Law College Dehradun, Uttaranchal University.
 R.V. Kelkar, Criminal Procedure, 6th ed. Pg. 314-315
 41st Report, p. 321. Para. 39.9.
 R.V. Kelkar, Criminal Procedure, 6th ed. Pg. 315
R.V. Kelkar, Criminal Procedure, 6th ed. Pg. 316
 Suresh Vasudeva v. State, Cri LJ 677(Del)(1978).
Gurbaksh Singh Sibbia v. State of Punjab 2 SCC (1980)
Section 438 (1-B), Code of Criminal Procedure, 1973.
 Ramsevak v. State of M.P. Cri LJ 1485, 1490(1979).
 Chhajju Ram v. State of Haryana, Cri LJ 608 (1978).
Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1 SCC 667(1996)
 R.V. Kelkar, Criminal Procedure, 6th ed. Pg. 319.
 Gunbaksh Singh Vs. Punjab AIR P&H 1 (1978).
 State v. Yoginder Kumar, Cri. LJ 685 (Del) (1985).