Anticipatory bail, as the name suggests, is bail granted to a person in anticipation and apprehending arrest. It is a preventive relief which was not originally included in The Code of Criminal Procedure, 1973 (‘CrPC’). 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. The very purpose for the provisions relating to anticipatory bail is to ensure that no person is confined in any way until and unless held guilty. 

When a person has reason to believe that he may be arrested on the accusation of committing a non-bailable offence then he can move to High Court or the Court of Session u/s 438 of CrPC for anticipatory bail. There are certain factors which are considered while granting anticipatory bail such as:

a. Nature and gravity of accusation,

b. 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,

c. The possibility of the applicant to flee from justice,

d. 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. 

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. 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 bail becomes operative1 . Issuance of a summon for appearance also entitles an accused to apply for anticipatory bail2 . 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 rights3 . The distinction between an ordinary bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore, means release from the custody of the police, the latter is granted in anticipation of arrest and is there effective at the very moment of arrest4 .

Conditions for Anticipatory Bail

The High Court or the Court of Sessions, while granting anticipatory bail may impose conditions as mentioned u/s 438(2). The conditions mentioned in that sub-section are only illustrative and the court may impose other conditions, it thinks fit, with a view to strike a balance between the individuals rights to personal freedom and the investigational rights of the police. The conditions imposed while granting such bail are –

a. The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.

b. The applicant should not leave the country without the previous permissions of the court.

c. The applicant should submit local residential address, native address and contact number to the concerned police station.

d. The applicant should not make any inducement, threat, promise etc. to any person acquainted with the facts of the case.

The court granting anticipatory bail cannot impose the condition that the direction to be released on bail will be applicable for a specified number of days after arrest because the effect of such order would be to disable the applicant from applying for regular bail u/s 437 of CrPC immediately after arrest, before the period mentioned in the order is over. Section 438 does not entitle the court to override the provisions of Section 437 and to stay for a certain period of time the right of the applicant to apply and to obtain his release on bail5 .

A direction issued u/s 438 of CrPC to the effect that the applicant shall be released on bail ‘whenever arrested for whichever offence whatsoever’, would amount to a ‘blanket order’. Such a blanket order is not provided for u/s 438 of CrPC. The Hon’ble Supreme Court of India in Gurbaksh Singh Sibbia v. State of Punjab6 held that a ‘blanket order’ should not be passed and the court passing order of anticipatory bail should take care to specify the offence or offences in respect of which the order will be effective. 

Recent Developments  

The courts granting anticipatory bail had a conflicting view regarding the issue as to whether anticipatory bail can be granted for a fixed duration of time, this controversy was later settled by the constitutional bench of the Hon’ble Supreme Court of India in Sushila Aggarwal & Ors. Vs. State (NCT of Delhi)7 where it was held that the protection granted to a person u/s 438 CrPC should not be limited to a fixed period unless a special case is made out. The Hon’ble Court further expounded 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.”

Recently, a 3-judge bench of the Hon’ble Supreme Court of India in Rahna Jalal v. State of Kerala8 held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act, 2019 (‘Act’), provided the competent court hears the woman who has made the complaint before granting the anticipatory bail. The Hon’ble Court further observed that a true and harmonious construction of S.438 of CrPC and S.7(c) of the Act should be made and that the legislature has not expressly barred the application of S.438 of CrPC.

Conclusion

The rationale behind enacting S. 438 was to safeguard the personal liberty of individuals, however the use of words ‘may, if it thinks fit’ in S. 438(1) of CrPC 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 very wide discretionary power on the courts to grant anticipatory bail. This wide discretion should be used cautiously by the courts since with the massive increase in the cases of socio – economic offences in India where the accused have fled the country to evade prosecution there is an increased chance of misuse to this preventive relief. The courts need to establish a fine balance between personal liberty of an individual and public interest before granting anticipatory bail.