Provision of Anticipatory Bail under 438 Cr.PC

Anticipatory bail is a legal remedy available to a person who anticipates being arrested in connection with a non-bailable offense. It is a pre-arrest legal measure that can be sought from the High Court or session court to ensure that the person is not taken into custody. The purpose of anticipatory bail is to protect the individual's personal liberty and prevent any possible harassment or unjust detention. Section 438 of the Code of Criminal Procedure code deals with directions for the grant of bail to a person apprehending arrest.

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:---

         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,

                                           either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days’ notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) 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.]

(2) When the High Court or the Court of Session makes a 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 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.

(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 be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

[(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).]

 

Landmark cases on Anticipatory Bail: Following are some case on anticipatory bail.

1.                   State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 = 1960 Cri.L.J. 1504 (SC) = 1960 KHC 732 (SC).

2.                   The State Of Maharashtra vs Vishwas Shripati Patil on 4 April, 1978, 80 BOMLR 432 .

3.                   Amiya Kumar Sen v. the State of West Bengal (1979),  Cri.LJ 288.

4.                   Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 = AIR 1980 SC 1632.

5.                   State of MP v. Rama Krishna Balothia and Anr. (1995)

6.                   State (Rep by C.B.I) v. Anil Sharma (1997)

7.                   M. C. Abraham and Another v. the State of Maharashtra and Others (2002)

8.                   Vaman Narayan Ghiya v. State of Rajasthan (2009)

9.                   Savitri Agarwal v. State of Maharashtra and Another (2009)

10.               Siddharam Satlingappa Mhetre v. State of Maharashtra – (2011) 1 SCC 694.

11.               Satpal Singh v. State of Punjab AIR 2018 SC 2011.

12.               Bhadresh Bipinbhai Sheth v. State of Gujarat (2015)

13.               Adri Dharan Das v. State of W.B. – (2005) 4 SCC 303 = AIR 2005 SC 1057.

14.               Rahna Jalal v. the State of Kerala (2020)

15.               Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1.

16.               Sushila Aggarwal v. State (NCT of Delhi) 2020 (1) KHC 663 (SC).

17.               Prajith Thayyil Kallil S/o Jogesh K J Versus the State of Maharashtra, and connected matters. Citation: 2022 Live Law (Bom) 187.

18.               Nasir Ahmed Wani & Ors VS Police Sation Neemuch : 2022 LiveLaw (JK) 39.

 

Conclusion: To apply for anticipatory bail, a person needs to approach the appropriate court and file an application. The court will then consider various factors as mentioned above such as the nature and gravity of the offense, the possibility of the person fleeing from justice, and the need to secure the person's presence during the investigation. If the court is satisfied that the person is entitled to anticipatory bail, it may grant the bail subject to certain conditions.

It is important to note that anticipatory bail is not a blanket protection against arrest. It only grants temporary relief, allowing the person to approach the court and seek regular bail if and when they are arrested. Anticipatory bail also does not guarantee immunity from prosecution or any other legal consequences arising from the alleged offense.

The grant of anticipatory bail is within the discretion of the court, and each case is evaluated on its individual merits. The court may impose conditions such as the surrendering of the person's passport, cooperation with the investigation, or any other requirement deemed necessary to ensure the person's presence during the proceedings.

It is advisable to consult a qualified legal professional who can provide guidance and assistance in matters related to anticipatory bail. They can help navigate the legal process, assess the specific circumstances of the case, and provide appropriate legal advice.

Please note that the information provided here is a general overview and should not be considered as legal advice. Laws and procedures can vary between jurisdictions, so it is essential to consult with a legal expert familiar with the applicable laws in your specific jurisdiction.

I hope this information has been helpful in providing a brief understanding of anticipatory bail. Should you have any further questions or require additional clarification, please do not hesitate to reach out to us.