CHAPTER-VI

ANTICIPATORY BAIL : LEGAL PROVISIONSUnder the Code of Criminal Procedure, 1898, there was no provision

corresponding to section 438 of the 1973 Code providing for bail in anticipation

of arrest. Anticipatory bail was, however, granted in certain cases under the High

Courts’ inherent powers though the preponderant view negatived the existence of

any such jurisdiction.1 The Law Commission in its 41st Report, recommended the

introduction of a provision in the Code enabling the High Court and the Court of

Session to grant “anticipatory bail”. The Commission viewed 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. In recent times,

with the accentuation of political rivalry, this tendency is showing signs of steady

increase. 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.2

The words anticipatory bail are neither found in Section 438 nor 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 is to make an order that in the event of arrest, a person shall be

released on bail unless a person is arrested and, therefore, it is only upon arrest

that an order granting ‘anticipatory bail’ becomes operational.3 The expression of

anticipatory bail is a convenient mode of conveying that it is possible to apply for

bail in anticipation of arrest.

1 Mangi Lal Vs. State 1952 Cr. L.J. 1425, State of Gujrat v. Govindlal Monilal Shah, AIR1966 Guj. 146, State Vs. Kailash, AIR 1953, ALL. 98, State Vs. Om Parkash, 1973Cr.L.J. 824 (H&P)

2 Law Commission of India, 41st Report on the Code of Criminal Procedure Vol.IP.311(1969)

3 Balakchand Jain Vs. State of M. P. 1976 4 SCC 572

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The legislative history of the provision reveals that the Joint Select

Committee of Parliament had initiated a thought that bail should be made

available in anticipation of arrest so that liberty of an individual may not be

unnecessarily jeopardized. The matter was referred to the Law Commission for

consideration about the inclusion of the remedy of grant of anticipatory bail in the

Code of Criminal Procedure, 1973. The Law Commission was enthused to take up

the suggestion. It formulated a draft provision to provide that bail in anticipation

of an arrest which ultimately got enacted as section 438 of the Code.

6.1 Direction for Grant of Bail to Person Apprehending Arrest under Section

438 Cr. P.C.

(1) When any person has reason to believe that he maybe arrested on an

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; and that Court may, if it thinks fit, direct that in the event of

such arrest, he be released on bail and that court may taking into

consideration inter alia 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 free 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.

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(1-A) Where the Court grants an interim order under sub-section (I) 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.

(1-B) 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, 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 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).

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Cr. P. C. (Amendment) Act 2005 (25 of 2005) – Sub-section (1) of the S.

438 has been substituted by the new sub-sections (1) (1A) and (1B). This

amendment in the section will come into force from the date of its notification.

6.2 Nature and Scope

One of the challenges that the law enforcement agencies are facing from the

Human Rights movement is that nobody should be confined in any way unless he

is declared guilty. To meet such posers the bail mechanism in India has been

statutorily extended by induction into its fold a comparatively new concept

commonly known as ‘anticipatory bail’. Section 438 of the Criminal Procedure

Code 1973 has been shaped to incorporate this concept. It deals with a situation

where a person having reasonable apprehension that he would be arrested on an

accusation of having committed a non bailable offence seeks to prevent his

detention. Such a person can move an application in an appropriate court, which

may grant him an anticipatory bail:

The principle that was being implemented through the provision of

anticipatory bail, according to one opinion, is alien to the concept and purpose of

bail because enacting such a provision in the chapter on bail has produced

difficulties. In fact, the Law Commission itself did not lay down in “the Statute

certain conditions under which alone anticipatory bail could be granted”. It said:

“We found that it may not be practicable to exhaustively

enumerate those conditions; and moreover, the laying down of

such conditions may be considered as prejudging (partially at any

rate) the whole case”. The task was passed on by the Law

Commission to the courts with the pious hope that the superior

courts will undoubtedly, exercise their discretion properly”, in the

wake of such matters as the Commission thought are being

accentuated on account of political rivalries.4 The Commission, in

this respect, observed:

4 Ld. Para 39.9.pp 320-21: see also the Law Commission of India, 48th Report para 31(1972)

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“In order to ensure that the provision is not put to abuse at the

instance of unscrupulous petitioners, the final order should be

made only after notice to the Public Prosecutor. The initial order

should only be an interim one. Further, the relevant section should

make it clear that the direction can be issued only for reasons to be

recorded, and if the court is satisfied that such a direction is

necessary in the interests of justice.”5

Some argue that the Law Commission has perhaps based its

recommendation on a wrong formulation that the anticipatory bail could be an

answer to situations which correspond to Tortious wrongs of Malicious

prosecution, Abuse of legal process, False Imprisonment and the like. The stunted

growth of the law of Torts in India having been unable to meet such mischievous

situations did call for a remedial action particularly in the wake of accentuated

political rivalry which has been “showing signs of steady increase”.6 Such wrongs

are being perpetrated in the society, thereby putting an unnecessary strain on the

machinery of criminal justice, besides abusing processes of criminal law. The

remedy, according to them, does not appear to lie in the grant of bail, anticipatory

or otherwise. They claim that bail is not a remedial measure. It is an in-built

mechanism of the administration of criminal justice. Its basic purpose is to settle a

custodial arrangement between the concerned parties viz. the court and the police

on the one hand and the accused on the other to ensure that the person is available

to the agencies of criminal justice as and when his presence is required for

purposes of fulfilling the obligations of criminal law and justice.

This is a new provision made on the recommendation of Law

Commission. Under the old Code there was no specific provision for grant of

“anticipatory bail”. The view of several High Courts was that unless a person was

under a restraint, i.e. in legal custody, no bail could be granted.7

5 Ibid.6 Ibid.7 See Varkey Paily Madthitudiyil AIR 1967 Ker. 189; Narayen Parshad AIR 1963 MP

276.

193

The first part of the section sets out the conditions under which a person

can make an application for anticipatory bail. The second part confers jurisdiction

on the High Court or the Court of Session. Thus the second part can be viewed as

strictly jurisdictional; that High Court and the Court of Session have concurrent

jurisdiction. Once a Court is invested with jurisdiction, that jurisdiction subsists

all along unless taken away expressly or by implication. There are no express

words in the section itself, indicating that the jurisdiction is taken away under any

circumstances. It does not appear that by implication even the jurisdiction of

either of the Courts is taken away or put an end to. It seems that the Legislators

did not intend to exclude the one or the other of the two Courts the High Court or

the Court of Session. Had it been so intended, the legislators would have taken

care to express that clearly, as they have done in subsection (3) of section 397 or

sub section (3) of section 399 Anticipatory bail cannot be claimed as a matter of

right, it is essentially a statutory right conferred long after the coming into force

of the Constitution. It is not an essential ingredient of Art. 21 of the Constitution.8

Sub-section (1) of section 438 has been extensively amended by the

Cr.P.C. (Amendment) Act 2005 (25 of 2005), old sub section (1) has been

substituted by new sub sections (1), (1A) and (1B), the guiding factors for grant of

bail have been mentioned in the sub section (1), itself. If the Court does not reject

the application for the grant of anticipatory bail, and makes an interim order of

bail, it should, forthwith give notice to the Public Prosecutor and

Superintendent of Police and the question of bail would be re-examined in the

light of the respective contentions of the parties; and (iii) the presence of the

person seeking anticipatory bail in the court should be made mandatory at the

time of hearing of the application for the grant of anticipatory bail subject to

certain exceptions. The Court would grant or refuse anticipatory bail after taking

into considering the following factors, namely:-

(i) The nature and gravity of the accusation;

8 State of MP v. R. K. Balothia 1995 Cr. L.J.2076, AIR 1995 SC 1198 (1995) 3 SCC221: 1995 SCC (Cri) 439.

194

(ii) The antecedents of the applicant including the fact as to whether

the accused 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 of the grant of

anticipatory bail. This amendment in the section will come into

force from the date of its notification.

The considerations that weigh with the court in dealing with applications

under this section are similar to applications under section 437 and section 439.

But the nature of the offence is given primary consideration. The guiding

principle is that if the Court can safely opine that if allowed to be free the accused

would be wholly indifferent towards the investigations he need not at all be afraid

of the result of the investigation and the trial., the court can refuse the

application.9 When the conduct of the person seeking anticipatory bail was not

inspiring confidence and no attempt to involve in false case to disgrace or malign

is made out, investigation to unearth the conspiracy was pending, it can not be

held that exceptional and special grounds justifying anticipatory bail were made

out.10

Allegations of a non bailable offence against a person and his

apprehension that he would be arrested is not sufficient to grant anticipatory bail.

Where in the petitions for anticipatory bail of the accused persons not a whisper

has been made to draw an inference that the object with which power to grant

anticipatory bail has been provided in this section is satisfied the Sessions Judge

has not applied judicial mind in grating anticipatory bail which tends towards

abuse of process of the court, it is liable to be vacated.11

9 K.Narayana Sivam Vs. State of A.P. 1980 Cr. L.J.588 (AP).10 Kasturchand Ramlal Vs. State of Maharashtra 1981 Cr. L.J.1328 (Bom).11 Suresh Chandra Gin Vs. State of Orissa 1988 (3) Crimes 428 429 (on).

195

Investigation officer was keen to arrest the accused for three months but

collecting materials; grant of anticipatory bail at that stage the officer has

collected some evidence, is not proper.12 When the accused is admittedly involved

in the offence and when police want the accused for investigation application may

be rejected.13

This is an exceptional power and should be exercised only in exceptional

cases and not in general cases. The consideration governing excise of discretion

for granting anticipatory bail are materially different from those of an application

for bail.14

Anticipatory is not to be granted as a mater of rule, should be granted only

when a special case is made out and the court is convinced that the person is of

such a status that he would not misuse his liberty.15 The power of anticipatory

bail being of extraordinary nature should be exercised only in exceptional cases.16

If a case for anticipatory bail is made out, it should not be refused merely because

the accused is required in police custody for interrogation.17 The wide powers

conferred to the higher Courts under section 438 (1) cannot be invoked on the

basis of general allegations. The judicial discretion conferred must be properly

exercised after proper application of mind to decide whether it is a fit case for

granting anticipatory bail or not.18

If at the stage of grant or refusal of anticipatory bail certain aspects of the

case are considered but later if the investigating agency files report under section

169, Cr.P.C. such a step would not amount to interference with the administration

of justice.19

12 State Vs. Yoginder Kumar, 1985 Cr.L.J.685 (Del).13 Madan Kashinath Aniankar Vs. State 1988 (1) Crimes 461 (Bom).14 Md. Abdul Sattar Vs. State of Assam 1986 (1) Crimes 263, 265 (Gau)Lila Rain

I.Rewani Vs. R.D. Gamdhi 1998 Cr.L.J. 14 (15) (Guj), Adni Dharan Das Vs. State ofWest Bengal 2005 Cr.L.J.1706 (SC).

15 Lilarani L. Revani Vs. R.D. Gamdhi, 1998 Cr.L.J. 14 (15) (Guj).16 Siri Krishan Das Vs. State of Haryana 2000 (2) Crimes 529 (P&H).17 Ibid.18 Natturasu Vs. State, 1998 Cr.L.J. 1762 (Mad)19 Satish Sharma Vs. State of Gujrat AIR 2003 SC 648(2002) 10 SCC 323: 2003(1)Cr.

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6.3 Object of Anticipatory Bail

The object of anticipatory bail is to relieve a person from unnecessary

apprehension or disgrace. The sine qua non of this provision is that when any

person has a reason to believe that he may be arrested on an accusation of having

committed a non bailable offence, he may apply to High Court or court of

Session. Mere mention of a name in FIR or petition of complaint directed to be

treated as FIR is not a reason for refusal of anticipatory bail.20 Conversely when

there is chance of repetition of offence (here a case under Section 364 read with

section 120-B IPC, a growing menace in the eastern border of Rajasthan) the

prayer for anticipatory bail is to be rejected.21

In a dowry-death case the allegation was that father-in-law, mother-in-law

and one son ‘N’ and a girl student of tender age inflicted mental torture

culminating in the suicide of the bride. In view of the tender age of girl, she was

admitted to anticipatory bail.22

In that dowry-death case Rajasthan High Court rejecting the application for

anticipatory bail of others observed unless the person apprehending arrest shows

the arrest is to be made on false basis to defame and humiliate him he is not

entitled to the benefit of section 438 Cr. P.C.23 But relying on Gurbax Singh V.

State of Punjab,24 the Punjab High Court and Kashmir High Court observed

malafides of the investigation agency need not be proved for anticipatory bail.25

Thus lays down the five-members Bench of Supreme Court it is

understandable that if malafides are shown, anticipatory bail should be granted in

the generality of cases. But it is not easy to appreciate why an anticipatory bail

20 Purna Chandra, Re. 1975 Cr. L.J.1815: 79 Cal. WN 890.21 Harji v. State of Rajashthan, 1983 Cr.L.J.1938: 1982 Raj.LW 6261980 WLN 719.22 Ashok Kumar v. State of Rajashtan,1981 Raj.Cr.C.272:1980 Cr.LR (Raj)581;1980

Raj.LW 267.23 Ibid.24 (1980) 2 SCC 565: 1980 SCC (Cri) 465.25 Pawan Chand Gupta v. State of Punjab 1980 Punj LR 694, 1980 Cr. LT 247, Punj.

Kunjlal Vs. State 1980 Cr.LT 350 (J&K).

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must be rejected unless the accusation is shown to be malafide. This truly, is the

risk of framing rules of judicial construction.26

The purpose of this section interalia appears to be to secure that person

anticipating arrest is not obliged to go to jail till he is able to move the Court for

being released on bail,27 to relieve a person from unnecessary apprehension or

disgrace.28 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 operative. The

object which is sought to be achieved by this section is that the moment a person

is arrested, if he has already obtained an order from the Sessions Judge or the

High Court, he would be released immediately without having to undergo the

rigor of jail even for a few days which would unnecessarily be taken up if he has

to apply for bail after arrest.29

In respect of non-bailable offences, all the conditions imposed by section

437 are implicitly contained in this section as well. In order to successfully invoke

the jurisdiction under this section apart from satisfying the conditions under

section 437, the applicant must, in addition make out a special case for securing

an order of anticipatory bail which is of an exceptional type. He must prove that

the charge leveled against him is malafide and stems from ulterior motive. It is for

the applicant to prima facie substantiate his allegations that the charge of serious

non-bailable offence against him has been leveled malafide.30 Consideration for

grant of anticipatory bail is the same as that of under section 437 or section 439.

6.4 Anticipatory Bail Cannot be Granted as a Matter of Right

Anticipatory bail cannot be granted as a matter of right nor should it be

lightly granted. And, in offences like murder, dowry death, for example, which

26 Gurbax Singh Vs. State of Punjab, (1980) 2 SCC, 565, 582, 1980 SCC (Cri) 465, 482.27 Samabhai Vs. State of Gidanot, 1977 Cr.LJ 1523 (Guj), Nathunasu Vs. State 1998

Cr.LJ 1762 (Mad)28 Lilarani I.Revani Vs. R.D. Gandhi, 1998 Cr.L.J. 14 (15) (Guj).29 Balchand Jain Vs. State of MP, AIR 1977 SC 366.30 Mathangonda Vs. State of Karnataka 1978 Cr. L.J. 1045 (Kant).

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are punishable with death or imprisonment for life and for imprisonment which

may extended to life, anticipatory bail ought not to be granted unless some very

compelling circumstances are made out.31

6.5 Apprehension of Arrest Necessary for Anticipatory Bail

For anticipatory bail, it is trite knowledge that S. 438 of Cr. P.C. is made

applicable only in the event of there being an apprehension of arrest, and where

the accused is inside the prison bars upon arrest against cognizable offences, the

question of relieving the accused from unnecessary disgrace and harassment

would not arise.32

Section 438 of the Cr. P.C. contemplates an application to be made by a

person apprehending arrest of an accusation of having committed a non-bailable

offence. It is indicative of the fact that an application for anticipatory bail is

pivoted on an apprehension of arrest which invites the exercise of power under

Section 438 Cr. P.C.33

The key words in S. 438 Cr. P.C. are “When (sic. Where) any person has

reason to believe that he may be arrested on an accusation of having committed a

non-bailable offence….” These words when understood in proper perspective

would mean a person must have a genuine apprehension regarding his arrest and

it has to be based on accusation pertaining to non-bailable offence.34 An

apprehension of arrest on accusation is the sine qua non for taking recourse to S.

438 Cr. P.C. an Accusation may exist before a case is registered by the police.

Thus the apprehension must be based on real belief and the arrest must be

imminent. Studied in this light it becomes crystal clear that place of apprehension

of arrest has importance.35

As a condition precedent to its application, S. 438 Cr. P.C. makes it

incumbent that there must be an existing accusation of having already committed

31 Manoj Agarwal v. State of Chhattisgarh, 2003 Cri LJ 3519 at p. 3522 (Chhattis).32 Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3825 : (2002)2 SCCC

210.33 Bimaladak v.State, 1997 Cri LJ 1969 at pp. 1970-71 (Cal) : 1997 Cal Cri LR 72.34 Sachindra Mahawar v. State of M.P., 2000 Cri LJ 637 at p. 640 (MP).35 Sachindra Mahawar v. State of M.P., 2000 Cri LJ 637 at p. 641 (MP).

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a non-bailable offence. On such an accusation there must be reason to believe that

applicant may be arrested. A mere apprehension of arrest will not suffice. That

must be on the basis of an accusation of having committed a non-bailable offence.

That means the apprehension must be reasonable and based on existing facts.

Imaginary accusation or future possible accusations will not be sufficient. On

such accusations which are yet to come there cannot be any reasonable

apprehension of an existing threat of arrest. It is a condition precedent for an

application under S. 438 that there must be an existing reasonable apprehension of

arrest on the existing accusation of having already committed a non-bailable

offence prior to the point of time of filing the application. That accusation will

have to be specified in the application and the direction to be sought for is for

release in case of arrest in connection with that accusation. Protection under S.

438 could be claimed only against specified accusation and not against possible

arrest in general against unspecified existing accusations or accusations likely to

arise in future. What is contemplated is not a blanket protection. If that be so

anybody could approach the Court and request that he may be directed to be

released whenever and wherever in connection with any case and under the cover

of such an order any offence could be committed with the assurance that he will

be released if arrested. That is not what the section contemplates. So also the

Court also could grant the relief only as against arrest in connection with existing

specified accusations. It is true that in order to invoke the provision it is not

necessary that a case has already been registered or even a first information has

been lodged. But the Court must be satisfied that there is a reasonable chance of

arrest in connection with some specified accusation.36

Application under S. 438 of the Code is actually made on apprehension of

arrest. In other words, it is only the apprehension of arrest which invites exercise

of power under S. 438 of the Code. The direction that may be given on such

application is that in the event of his arrest, the applicant shall be released on

36 Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1113(Ker) : 1985 Mad LJ (Cri) 263.

200

bail.37 An analysis of S. 438 Cr. P.C. discloses that a person invoking the

jurisdiction of the Court must have the reason to believe that he is likely to be

arrested on an accusation of having committed a non-bailable offence.38

6.6 Apprehension of Arrest by Police or Other Authorized Person

The provisions of S. 438 Cr. P.C. are applicable to an apprehended arrest

whether to be made by a police officer in charge of a police station or by any

person who is authorized in law to effect arrest.39

6.7 Sufficiency of Grounds

In a case, the Supreme Court held that the anticipatory bail order granted

by the High Court was not in accordance with law, as the first respondent who

had approached the High Court apprehending arrest in a murder case did not have

sufficient grounds for entertaining such apprehension. He was not an accused

named in the FIR and he was not made an accused thus far in the investigation

which was in progress. However, the State was not in a position to rule out the

possibility of the first respondent being involved in the murder case because the

materials were being collected to find out the real culprit of the murder. The

Supreme Court observed that the order under Section 438 Cr. P.C. can be passed

only if the High Court is satisfied that the petitioner has reason to believe that he

may be arrested in a non-bailable offence; without sufficient grounds for the

petitioner to believe that he is going to be arrested in the murder case, he cannot

apply for anticipatory bail order under Section 438 of the Code. The Supreme

Court held that thus the application made by the first respondent before the High

Court was premature, and that at such a premature stage it was unnecessary for

the High Court to consider the application under Section 438. The order granting

anticipatory bail to the first respondent was accordingly set aside with liberty

given to him to apply for bail or anticipatory bail again at the appropriate state,

37 T. Madhusoodan v. Supdt. Of Police, 1992 Cri LJ 3442 at p. 3444 (Ker).38 K. Rajesekhara Reddy v. State of A.P.¸1999 Cri LJ 1933 at p. 1934 (AP).39 Suresh Vasudeva v. State, 1987 Cri LJ 677 at p. 683 (Del).

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and without prejudice to the right and power of the investigating agencies to

proceed in the investigation as per law.40

The apprehension must be reasonable and based on existing facts.

Imaginary accusation or future possible accusations will not be sufficient. On

such accusations which are yet to come there cannot be any reasonable

apprehension of an existing threat of arrest. It is a condition precedent for an

application under S. 438 that there must be an existing reasonable apprehension of

arrest on an existing accusation of having already committed a non-bailable

offence prior to the point of time of filing the application. That accusation will

have to be specified in the application and the direction to be sought for is for

release in case of arrest in connection with that accusation.41

6.8 No Anticipatory Bail on Mere General Allegation

Merely because wide powers are conferred to the higher Courts, Section

438(1) of Cr. P.C. cannot be invoked on the basis of a general allegation. Though

it is a device to secure the individual’s liberty, the Courts should not allow it to be

used as a passport to the commission of crimes or as a shield against all kinds of

accusations. However, if an application for anticipatory bail is made to the High

Court or the Court of Session, the Court should apply its own mind to the question

and decide whether a case has been made out for granting such a relief and that it

could not leave the question for the decision of the Magistrate concerned on the

bail application under Section 437 of the Code, as and when an occasion arises

because such a course would defeat the very object of Section 438 of the Code.42

6.9 Distinction Between Ordinary Bail and Anticipatory Bail

The distinction between an ordinary order of bail and an order of

anticipatory bail is that whereas the former is granted after arrest and therefore

40 Jaswantbhai M. Sheth v. Anand V. Nagarsheth, (2000)10 SCC 7 at pp. 7-8.41 Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1113

(Ker) : 1985 Mad LJ (Cri) 263.42 Nattursau v. State, 1998 Cri LJ 1762 at p. 1767 (Mad).

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means release from the custody of the police, the latter is granted in anticipation

of arrest and is therefore effective at the very moment of arrest.43

Unlike a post-arrest order of bail, it is a pre-arrest legal process which

directs that if the person in whose favour it is issued is thereafter arrested on the

accusation in respect of which the direction is issued he shall be released on bail.

A direction under S. 438 Cr.P.C. is intended to confer conditional immunity from

the touch as envisaged by S. 46(1) Cr. P.C. or Confinement.44

Police custody is an inevitable concomitant of arrest for non-bailable

offences. An order of anticipatory bail constitutes, so to say, an insurance against

police custody following upon arrest for offence or offences in respect of which

the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-

arrest legal process which directs that if the person in whose favour it is issued is

thereafter arrested on the accusation in respect of which the direction is issued, he

shall be released on bail.45

S. 438 and S. 439 Cr.P.C. operate in different fields. It is clear form a bare

reading of the provisions that for making an application in terms of Section 439 of

the Code a person has to be in custody. Section 438 of the Code deals with

“direction for grant of bail to person apprehending arrest”.46

It cannot be said that ‘bail’ and “anticipatory bail” are two entirely

different concepts and “anticipatory bail” can never be equated with ‘bail’. From

the collection and scheme of Cr.P.C. and the language of S. 438 of Cr. P.C. it

becomes explicitly clear that the legislature intended to bring “anticipatory bail”

within the category of ‘bail’ and not to treat it as something different from

‘bail’.47

The distinction between an ordinary order of bail and an order under

Section 438 of the Code is that whereas the former is granted after arrest, and

43 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1637.44 Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 at pp. 970-71.45 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1637.46 Nirmal Jeet Kaur v. State of M.P., (2004)7 SCC 558 at p. 562.47 Pijush Kanti Dey v. State, 1985 Cri LJ 1664 at p. 1666 (Cal).

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therefore means release from custody of the Police, the latter is granted in

anticipation of arrest and is therefore effective at the very moment of arrest.48

An ordinary order of bail is distinguished from an order of anticipatory

bail in that the former is granted after the arrest and, therefore, means release from

the custody of the police after having resorted to the provisions of Section 437 of

the Cr.P.C. So far as Section 438 is concerned, the anticipatory bail is granted in

anticipation of arrest and, is, therefore, effective at the very moment of arrest.49

There is not much of difference between the “bail” and “anticipatory bail”.

The only distinction between bail and 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 therefore effective at the very

moment of arrest. As such, the pre-arrest bail and post-arrest bail are one and the

same, since both would relate to the release after arrest. From the collection and

scheme of the Cr.P.C. and Section 438 Cr.P.C., it becomes explicitly clear that the

legislature intended to bring anticipatory bail within the category of bail and not

to treat it as something different from bail.50

The scope of S. 438 Cr. P.C. is different and distinguishable from the

sequence in which an application under S. 437 or 439 Cr. P.C. can be entertained.

An application for bail under S. 438 Cr. P.C. can be entertained when the

petitioner satisfies about reasonable apprehension of arrest. That apprehension

expressed by the petitioner can be examined and appreciated if it is filed before

submission of charge sheet inasmuch as after submission of charge-sheet the

mode of securing the attendance of the accused is guided by the Court’s order and

at that stage voluntarily or suo motu police does not take any action to arrest the

offender.51

48 D.K. Ganesh Babu v. P.T. Manokaram, 2007 Cri LJ 1827 at p. 1828 : AIR 2007 SC 1450: (2007)4 SCC 434 : (2007)2 SCC (Cri) 345.

49 Bimaladak v. State, 1997 Cri LJ 1969 at p. 1971 (Cal) : 1997 Cal Cri LR 72.50 Natturasu v. State, 1998 Cri LJ 1762 at p. 1765 (Mad).51 Hemanta Kumar Nayak v. State of Orissa, 2000 Cri LJ 3267 at p.l 3271 (Ori).

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6.10 Discretion to be Exercised Objectively not Arbitrarily

In the matter of grant of anticipatory bail, the Supreme Court observed

that discretion ought to be permitted to remain in the domain of discretion, to be

exercised objectively and open to correction by the higher courts. The safety of

discretionary power lies in this twin protection which provides a safeguard against

its abuse.52

The order contemplated under S. 438 of the Code is to be granted or

refused by the High Court or a Court of Session, after exercising its judicial

discretion wisely.53

While the Court exercises its discretion, whether it is under S. 437 or 438

or 439, Cr. P.C., it shall exercise the same properly and not in an arbitrary

manner. The discretion exercised shall appear a just and reasonable one. It is true

that no norms are prescribed to exercise the discretion. Merely because, norms are

not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr.

P.C. that does not mean the discretion shall be left to the whims of the Court.54

Though the powers for grant of anticipatory bail are very wide, the

judiciary discretion must be properly exercised after proper application of mind to

decide whether it is a fit case for granting anticipatory bail or not.55

Section 438 Cr. P.C. itself is widely worded and does not engraft any

limitations on the power of the Court in case a person who has reason to believe

that he may be arrested on accusation of having committed a non-bailable offence

makes an application invoking the powers of the Court for a direction granting

anticipatory bail. Even so, the powers have to be exercised in a judicial manner

with the end in view that whilst the object of the provision is served pitfalls in the

situation are eschewed.56

52 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p 1642 : 1980 Cri LJ1125 : (1980)2 SCC 565 : 1980 SCC (Cri) 465.

53 Directorate of Enforcement v. P.V. Prabhakar Rao, (1997)6 SCC 647 at p. 649 : AIR1997 SC 3868 : 1997 SCC (Cri) 978.

54 Afsar Khan v. State, 1992 Cri LJ 1676 at pp. 1679-80 (Kant) : ILR 1992 Kant 2894.55 Nattursau v. State, 1998 Cri LJ 1762 at p. 1767 (Mad).56 Jintendra Singh v. State, 1998 Cri LJ 1762 at p. 1767 (Mad).

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If a custodial interrogation in a serious case is required by the

investigating agency for unearthing the important materials, the High Court or the

Sessions Court should not normally grant anticipatory bail. Therefore, the wide

powers vested with the High Court or the Court of Session would invite the wise

exercise of judicial discretion. Every kind of judicial discretion, whatever may be

the nature of the matter, in regard to which it is required to be exercised, has to be

used with a due care and caution.57

A close look at Section 438, Cr. P. C., demonstrates that grant of

anticipatory bail is a matter of judicial discretion and the Court must be satisfied

that a fit case has been made out for exercise of such discretion. The Court has to

make an effort to strike a balance between the individual’s right to personal

freedom and the investigational rights of the police. The provisions of Section

438, Cr. P.C., are not to be applied mechanically. The phraseology “if it thinks

fit” available in the body of the section reading with sub-section (2) thereof is

indicative enough that such order on the face of it must show the reasons for

granting anticipatory bail.58

6.11 Discretion to Grant Anticipatory Bail Need not be Confined to

Exceptional Cases Only

With regard to a proposition laid down by a High Court saying that the

power conferred by Section 438 Cr. P.C. is “of an extraordinary character and

must be exercised sparingly in exceptional cases only”, a Constitution a Bench of

the Supreme Court that it may perhaps be right to describe the power as of an

extraordinary character because ordinarily the bail is applied for under S. 437 or

S. 439. These Sections deal with the power to grant or refuse bail to a person who

is in the custody of the police and that is the ordinary situation in which bail is

generally applied for. The Supreme Court further observed that but, this does not

justify the conclusion that the power must be exercised in exceptional cases only,

because it is of an extraordinary character. All discretion has to be exercised with

care and circumspection, depending on circumstances justifying its exercise. It is

57 Nattursau v. State, 1998 Cri LJ 1762 at p. 1767 (Mad).58 Ganesh Raj v. State of Rajasthan, 2005 Cri LJ 2086 at p. 2092 (Raj) (FB).

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unnecessary to travel beyond it and subject the wide power conferred by the

legislature to a rigorous code of self-imposed limitations.59

It may be pointed out that in an earlier case of Balchand Jain v. State of

M.P.,60 the Supreme Court had held that the power of granting anticipatory bail is

somewhat extraordinary in character and it is only in exceptional cases that such

power is to be exercised. Explaining and distinguishing the said decision, a

Constitution Bench of the Supreme Court in the aforesaid case of Gurbaksh Singh

Sibbia v. State of Punjab,61 held that the question as regards the interpretation of

Section 438 Cr. P.C. did not at all arise in that case, and that the said case was

mainly concerned with Rule 184 of the Defence and Internal Security of India

Rules, 1971, and whether S. 438 applied in such a situation. The Supreme Court

held that the observations made in the said Balchand Jain case regarding the

nature of the power conferred by S. 438 and regarding the question whether the

conditions mentioned in S. 437 should be read into S. 438 cannot therefore be

treated as conclusion on these points which arose directly for its consideration.

The Supreme Court agreed that the power conferred by S. 438 is of an

extraordinary character in the sense that it is not ordinarily resorted to like the

power conferred by Ss. 437 and 439. The Supreme Court also agreed that the

power to grant anticipatory bail should be exercised with due care and

circumspection but beyond that, the Supreme Court refused to agree with the

observations made in the said Balchand Jain case in an altogether different

context on an altogether different point. Therefore, in effect, what the Constitution

Bench of the Supreme Court has held in the Gurbaksh Singh Sibbia case is that

while the power of granting anticipatory bail is somewhat extraordinary in

character, it is not correct to say that only in exceptional cases that such power is

to be exercised.

59 Gurbaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632 at p. 1645 : 1980 Cri LJ1125 : (1980)2 SCC 565 : 1980 SCC (Cri) 465.

60 AIR 1977 SC 366 at pp. 368-69 : 1977 Cri LJ 225 : (1976)4 SCC 572 : (1977)2 SCR 52 :1976 SCC (Cri) 689 (Per BHAGWATI and GUPTA. JJ.)

61 AIR 1980 SC 1632 at pp. 1645-46 : 1980 Cri LJ 1125 : (1980)2 SCC 565 : 1980 SCC(Cri) 465.

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However, in a subsequent case, namely, Adri Dharam Das v. State of

W.B.,62 a 2-Judge Bench of the Supreme Court again held that the power

exercisable under Section 438 Cr. P.C. is somewhat extraordinary in character and

it is only in exceptional cases where it appears that the person may be falsely

implicated or where there are reasonable grounds for holding that a person

accused of an offence is not likely to otherwise misuse his liberty, that the power

is to be exercised under Section 438. The power being of important nature it is

entrusted only to the higher echelons of judicial forums i.e. the Court of Section

or the High Court. It is the power exercisable in case of an anticipated accusation

of non-bailable offence.

The aforesaid observations in Adri Dharam Das case were subsequently

reiterated by the Supreme Court in the cases of Naresh Kumar Yadav v. Ravindra

Kumar,63 and D. K. Ganesh Babu v. P.T. Manokaran.64

It may be pointed out while making the aforesaid observations in Adri

Dharam Das case, the Supreme Court relied upon its earlier decision in Balchand

Jain v. State of M.P.,65 wherein similar observations were made. However, it is

not clear from the said Andri Dharan Das case as to whether the observations

made in the said Balchand Jain case were being merely reproduced or the same

were being reiterated or being made afresh. This fact assumes importance because

the aforesaid observations made in the Balchand Jain case have already been

explained and distinguished by a Constitution Bench of the Supreme Court in the

aforesaid Gurbaksh Singh Sibbia case, as noted above, and in the latter case the

Supreme Court did not fully endorse the said observations in the Balchand Jain

case. It is submitted that having referred to the Constitution Bench decision in the

said Gurbaksh Singh Sibbia case in the very same paragraph, the Supreme Court

in the Adri Dharam Das should have refrained from approvingly citing or

62 (2005)4 SCC 303 at p. 309 : AIR 2005 SC 1057 : 2005 Cri LJ 1706 : 2005 SCC (Cri)933.

63 (2008)1 SCC 632 at p. 635.64 2007 Cri LJ 1827 at p. 1829 : AIR 2007 SC 1450 : (2007)4 SCC 434 : (2007)2 SCC

(Cri) 345.65

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reiterating the said observations in Balchand Jain case which had already been

explained and distinguished by a larger Bench by not approving them fully.

It is also submitted that to the extent, the aforesaid 2-Judge decision in

Adri Dharan Das runs contrary to the ratio laid down by the 5-Judge Constitution

Bench of the Supreme Court in the aforesaid case of Gurbaksh Singh Sibbia, it is

not correct law and is per incuriam on the said point to law. The correct legal

position has already been laid down in the Gurbaksh Singh Sibbia case, wherein it

was held that though the power to grant anticipatory bail is of an extraordinary

character, this does not justify the conclusion that the power must be exercised in

exceptional cases only, just because it s of an extraordinary character, and that all

discretion has to be exercised with care and circumspection, depending on

circumstances justifying its exercise. In the said Gurbaksh Singh Sibbia case, the

Supreme Court had refused to travel beyond it and to subject the wide power

conferred by the legislature under S. 438 Cr. P.C. to a rigorous code of self-

imposed limitations. In this view of the after, it is submitted that the aforesaid

contrary observations of the 2-Judge Bench of the Supreme Court in the aforesaid

subsequent Adri Dharan Das case case do not reflect the correct law and are per

incuriam. Similar observation in the aforesaid two other cases decided by the

Supreme Court, namely, Naresh Kumar Yadav case and D.K. Ganesh Babu case,

as also observations made in some of the cases, as detailed below, including cases

decided by various High Courts, have also to be considered in the light of these

submission, being per incuriam observations or not correct law, being contrary to

what was laid down in the Constitution Bench decision of the Supreme Court in

the said Gurbaksh Singh Sibbia case.

Section 438 stands included in the Code, but its applicability would be

rather in rarity than generality.66

Anticipatory bail is not to be granted as a mater of course in all cases

where the applicant has reason to believe that he may be arrested on an accusation

of having committed a non-bailable offence. Grant or refusal of such bail must

66 Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3814 : (2002)2 SCC210.

209

depend upon variety of circumstances. The power under S. 438 Cr. P.C. has to be

exercised sparingly and in exceptional cases using the discretion on the facts of

each case. It should not be allowed to circumvent the normal procedure of arrest

and investigation or to prejudice the investigation. Ulterior motive of harassment

and reasonable possibility of the accused not absconding are only some of the

considerations. Some little facts may be necessary in the exercise of the discretion

to grant or refuse the prayer. In exercising the judicial discretion in granting

anticipatory bail the court should not be unmindful of the difficulties likely to be

faced by the investigating agency and the public interest likely to be affected

thereby.67

Anticipatory bail cannot be granted in all cases as a matter of course. The

exercise of power under Section 438 Cr. P.C. being of an extraordinary nature,

has to be invoked in exceptional cases only. While considering the prayer for

grant of anticipatory bail, a balance has to be struck between two factors, namely,

no prejudice should be caused to the free and full investigation and there should

be prevention of harassment and unjustified detention of the accused.68

The provisions under S. 438 Cr. P.C. have to be sparingly used in rarest of

rare cases where the conscience of the Court of justice is satisfied that the accused

applicant is innocent or he has been falsely implicated due to some mala fide or it

appears that it is a case of over-implication by an unscrupulous complaint. The

mala fide must be specifically alleged and required to be proved by the accused

applicant. The extra-ordinary power conferred upon Courts of justice under S. 438

Cr. P.C. must be exercised in exceptional cases only.69

The power under Section 438, Cr. P.C. is to be exercised in extreme cases

and allow the regular Court to exercise its jurisdiction in accordance with law.

The power under Section 438, Cr. P.C. is not meant to overreach or circumvent

the power of the normal channel and to bye-pass the regular Court. Thus, in the

instant case which was under Sections 376/417 of the IPC, the High Court

67 V. Nandanan v. DIG of Police (Crime), Hyderabad, 1986 Cri LJ 1052 at p. 1053 (Ker).68 Govinda Chandra Senapati v. State of Orissa, 1996 Cri LJ 1014 at p. 1016 (Ori).69 Pankaj v. State of Rajasthan, 1996 Cri LJ 3265 at p. 3266 (Raj).

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declined to exercise its power under Section 438 of the Cr. P.C. for the reason that

the matter of granting bail could be considered by the Court of the first instance.70

Of course, it is true that the provisions regarding grant of anticipatory bail

are to be sparingly used in exceptional cases and ought not to be used to

circumvent the normal procedure and investigation after arrest. Hence, it becomes

necessary for the accused to show a strong case and it may also be necessary to

demonstrate that the case is false or concocted or that the accusation is not from

motives for furthering the ends of justice but form some ulterior motive.71

There can be no dispute to the proposition that the power to grant

anticipatory bail is not to be exercised by the Court as a matter of course, but has

to be exercised sparingly. And, while exercising this power, the Court is also

required to see whether refusal of anticipatory bail may result in any wrong or

injustice, which it is desirable to avoid. The Court is also required to examine the

material available with the police and to determine if it is “a fit case” in which to

exercise its power for granting anticipatory bail. Of course, the limitations placed

are always to be kept in mind as the power is to be exercised with due care and

circumspection.72

Anticipatory bail to some extent intrudes in the sphere of investigation of

crime and as such the Court must be cautious and circumspect in exercising such

power which is of a discretionary nature and such a power is not to be exercised

lightly. But, at the same time, if the circumstances on record are such which give

rise to an inference that the accusations are mala fide and appear to be false or

groundless, it would not be proper to refuse exercise of powers conferred upon the

Court under Section 438 of Cr. P.C. Of course, general allegations of mala fide or

falsity of accusation are not sufficient to invoke this power.73

The powers under Section 438 Cr. P.C. are to be used very sparingly and

only in the most appropriate and desirable cases and the Courts hearing such

applications will have to very carefully cases the point of time at which the

70 Sankar Modhi v. State of Assam, 1997 Cri LJ 3491 at p. 3492 (Gau).71 Manoj Agarwal v. State of Chhattisgarh, 2003 Cri LJ 3519 at p. 3522 (Chhattis).72 Ibid, at p. 3524 (Chhattis).73 Ibid, at p. 3525 (Chhattis).

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application has been made and more importantly as to whether the investigation

would not only be affected but ruined by the grant of untimely bail. What is

important is that the Court must do a very careful assessment of the timing and of

the relevant facts before exercising the powers under Section 438 Cr. P.C. It is

well-settled law that the prosecution has to be given a fair and reasonable time

and opportunity to gather the evidence and to complete the vital aspects of the

investigation and there is one other angle that the Courts have to take cognizance

of namely, the fall-out in the public mind through the grant of hurried and

untimely bail. The Courts ought to and are required to take cognizance of all these

relevant factors.74

The power exercisable under S. 438 Cr. P.C. is somewhat extraordinary in

character and it is only in exceptional cases where it appears that the person may

be falsely implicated or where there are reasonable grounds for holding that a

person accused of an offence is not likely to otherwise misuse his liberty then

power is to be exercised under S. 438. It is true that the Court is not powerless to

grant bail for the entire period of trial but the recent development of law leans in

favour of granting limited bail especially, when the investigation is at the

premature stage.75

It is an extraordinary equitable discretion to act in aid of justice which is

conferred on the superior courts without any specific guidelines under S. 438 Cr.

P.C. Under the Cr. P.C., offences are categorized into bailable and non-bailable

offences. An order under S. 438 Cr. P.C. virtually converts a non-bailable offence

declared by law to be a bailable one subject to conditions which may be imposed

by the Court in its order. Such a paramount power and discretion can and ought to

be invoked only sparingly and in exceptional cases. Unless there are satisfactory

and compelling reasons, such jurisdiction cannot and should not be invoked as a

matter of course. Even the fact that after arrest if the accused approach the Court

under S. 439 Cr. P.C. bail may be granted to them, is no reason for the Court to

invoke the extraordinary equitable discretion under S. 438 Cr. P.C. When the

74 State of Karnataka v. Rangappa, 2004 Cri LJ 3720 at pp. 3721-22 (Kant).75 State of Maharashtra v. Ananda Tukaram Akale, 2008 Cri LJ (NOC) 579 (Bom.)

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powers of arrest are about to be misused or used mala fide or with oblique

motives or when the exercise of the powers of arrest though not actuated by

oblique motives or mala fides would still result in prejudice and inconvenience of

an exception variety, which must be avoided in the interest of justice, then and

then alone, shall such jurisdiction be invoked.76

It is true that the power to grant anticipatory bail under S. 438(1) of Cr.

P.C. has to be exercised sparingly. One of the categories of cases for the grant of

anticipatory bail, is that there should be “reasonable grounds for holding that a

person accused or an offence is not likely to abscond, or otherwise misuse his

liberty while on bail.”77

Grant of anticipatory bail is not a normal feature even where the offence

alleged is non-bailable and there is apprehension in mind that the applicant shall

be arrested. When wide power is given to the Court, it is to be exercised with

restraint.78

6.12 Considerations for Grant of Anticipatory Bail

At the outset, it may be pointed out that as per the amendment carried out

in sub-section (1) of S. 439 Cr. P.C. by Act 25 of 2005 w.e.f. 23rd June, 2006, the

following factors are required to be taken into consideration by the Court before

issuing any direction under the said section:

(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.

In regard to anticipatory bail if the proposed accusation appears to stem

not from motives of furthering the ends of justice but from some ulterior motive,

76 Berin P. Varghese v. State of Kerala, 2008 Cri LJ 1759 at p. 1761 (Ker).77 Suresh Vasudeva v. State, 1978 Cri LJ 677 at p. 683 (Del).78 State v. Pabitra Mohan Sahoo, 1989 Cri LJ 1028 at p. 1028 (Ori).

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the object being to injure and humiliate the applicant by having him arrested, a

direction for the release of the applicant on bail in the event of his arrest would

generally be made. On the other hand, if it appears likely, considering the

antecedents of the applicant, that taking advantage of the order of anticipatory bail

he will flee form justice, such an order would not be made. But the converse of

these propositions is not necessarily true. That is to say, it cannot be laid down as

an inexorable rule that anticipatory bail cannot be granted unless the proposed

accusation appears to be actuated by 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 to the making of the charges, a reasonable possibility of the applicant’s

presence not being secured at the trial, a reasonable apprehension that witnesses

will be tampered with and “the large 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.79

The gravity of the offence is an important factor to be taken into

consideration while granting anticipatory bail so also the need for custodial

interrogation.80

While considering the question of grant of anticipatory bail, the Court will

accord anxious consideration to the relevant factors such as gravity of the offence,

nature of the accusation, likelihood of absconding, likelihood of tampering with

evidence etc.81

While considering the application for anticipatory bail under S. 438 of Cr.

P.C., it is not proper to make an elaborated document of materials collected. Court

also shall not try to assess evidence collected by the prosecution as if it is holding

79 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1647.80 Bharat Chaudhary v. State of Bihar, (2003)8 SCC 77 at pp. 78-79 : AIR 2003 SC 4662

SCC (Cri) 1953.81 Somabhai Chaturbhai Patel v. State of Gujarat, 1977 Cri LJ 1523 at p. 1524 (Guj) :

(1977)18 Guj LR 131.

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a pre-trial. All that it has to see is whether accused have not roots in the society.

The overriding considerations in granting such bail shall be82

(i) Nature and gravity of the circumstances in which the offence is

committed:

(ii) The position and status of the accused with reference to the victim and

the witnesses;

(iii) Likelihood of the accused fleeing from justice;

(iv) Likelihood of the accused repeating the offences, and of tampering

with the witnesses;

(v) History of the case as well as of its investigation and other relevant

grounds, which in view of so many variable factors cannot be

exhaustively set out.

The consideration which weigh with the Court while granting bail either under S.

438 or 439, Cr. P. C. are:83

(a) The nature and gravity of the circumstances in which the offence is

committed;

(b) The position and the status of the accused with reference to the victim and

the witnesses;

(c) The likelihood of the accused fleeing from justice;

(d) The likelihood of the accused of repeating the offence;

(e) The likelihood of the accused of jeopardizing his own life being faced

with a grim prospect of possible conviction in the case;

(f) The likelihood of the accused of tampering with witnesses;

(g) The history of the case as well as of his investigation; and

(h) Other relevant grounds which may apply to the facts and circumstances of

a particular case.

The possibility of false implication of an accused, the chances of the

accused misusing his liberty if released on bail, and the possibility of the accused

absconding and thus making himself not available for the purpose of

82 M. Krishnappa v. State of Karnataka, 1992 Cri LJ 2648 at pp. 2650-51 (Kant).83 Sajjan Kumar v. State, 1991 Cri LJ 645 at p. 653(Del).

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investigation, are some of the circumstances and factors which ought to be borne

in mind by the Court when called upon to determine the question of grant or

refusal of anticipatory bail.84

According to S. 437 of Cr. P. C., different considerations, come into play

when any person is accused of a non-bailable offence and there appear reasonable

grounds for believing that he has been guilty of an offence punishable with death

or imprisonment for life. Regarding all other offences the matter has been left to

the discretion of the Court concerned. Bail should not be refused as a matter of

punishment. A person accused of an offence, howsoever heinous, has to be

considered as innocent till he is proved to be guilty. While considering the

question regarding grant or refusal of bail, several circumstances, including the

seriousness of the offence, the possibility of the accused to abscond, or the

chances of his tampering with the witnesses or misusing his liberty, as well as the

prima facie nature of the evidence available on the record, have been considered

by the Court as relevant considerations. There considerations are also relevant for

the purpose of deciding the question of grant of anticipatory bail. Besides these,

the background and the circumstances which persuaded the Law Commission to

recommend the introduction of the provision of anticipatory bail in the statute

book have also to be borne in mind.85

The grant of blanket anticipatory bail cannot be read into S. 438 Cr. P. C.

The said power is not unguided or uncancalised, but all the limitations imposed in

the preceding S. 437 Cr. P. C. are implicit therein and must be read into S. 438 as

well. In addition to the limitations imposed in S. 437, the petitioner must further

make out a special case for the exercise of the power to grant anticipatory baik

which is of an exceptional type. He must prove that the charge leveled against

him is mala fide and stems from ulterior motive. Mere allegation of mala fides by

an offender and a vehement claim of innocence put forward by him are manifestly

insufficient for arriving at such a conclusion by the Court. The burden of

establishing the mala fides is on the person alleging it. It is for the petitioner to

84 Bansi Lal v. State of Haryana, 1978 Cri LJ 472 at p. 476(P & H).85 Ibid, at p. 477(P & H).

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prime facie substantiate his allegation that the charge of the serious non-bailable

offence against him has been leveled mala fide.86

In respect of non-bailable offences, all the conditions imposed by s. 437 of

the Code are implicitly contains a prohibition to grant bail in all cases where there

appear reasonable grounds for believing that the offender has been guilty of an

offence punishable with death or imprisonment for life. The nature and the

seriousness of the charge be itself, therefore, is one of the important

considerations for the non-release of an accused person on bail. Therefore, where

the nature of the charge is so serious as to be punishable with death or

imprisonment for life, it would normally be inapt to exercise the power of the

grant of anticipatory bail at the very threshold of the investigation unless the

Court at that very stage is satisfied that such a charge is false or groundless.87

There cannot be an inexorable formula in the matter of granting bail. The

facts and circumstances of each case will govern the exercise of discretion in the

matter of grant of bail. While seeking bail in anticipation of his arrest under S.

496 of J & K Cr. P. C. (of 1989 Smvt.) a person accused of the commission of a

non-bailable offence, must in addition to satisfying the conditions detailed in S.

497 of the Code make out the existence of a special case requiring the High Court

or the Court of Session to exercise its discretion to admit him to bail.88

For the Court while granting bail in non-bailable offences, it becomes

necessary to consider the nature of offence, gravity and seriousness of it, the

person as also the age, sex and physical conditions of an accused and this

consideration will not be possible unless the accused person apprehending his

arrest discloses the nature of an offence under which he apprehends the arrest.89

In application under S. 438, Cr. P. C. also, The same considerations weigh

with the court which are relevant for grant of bail, but with this difference that the

86 Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 at p. 1045 at p. 1046 (Kant) :ILR (1978)1 Kant 905.

87 Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 at pp. 1046-479Kant) :ILR(1978)1 Kant 905.

88 Kali Dass v. S.H.O. Police Station Reasi, 1979 Cri LJ 345 at p. 353 (J P& K).89 Rameswak v. State of M. P., 1979 Cri LJ 1484 at p. 1488 (MP) : 1979 Jab LJ 573 (MP) :

1980 MPLJ 100.

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nature of the offence has to be given primary consideration. The likelihood of

misusing liberty during the investigation in serious offences punishable with death

or imprisonment for life is greater, as interfering with the witnesses before they

are examined by the investigating officers is not so difficult as interference after

their examination by the investigating officers. When the offence alleged is

serious it is not unlikely that the person accused would be tempted to interfere

with the fair course of investigation. The very seriousness of the offence alleged is

sufficient ground to reasonably believe that the accused may misuse his liberty by

interference with the evidence that may be available in the case if possible, or by

absconding if tampering is not possible. In such serious cases where the offence

alleged is punishable with death or imprisonment for life, the discretion under S.

438, Cr. P. C. shall not be exercised unless the Court at that very stage is satisfied

that the charge appears to be false or groundless. The guiding principle is

whether, on a consideration of all the facts and circumstances of the case as

available at that very stage, the Court can safely opine that, if allowed to be free

without being detained in the jail, the accused would be wholly indifferent

towards the investigation as he need not at all the afraid of the result of the

investigation and the trial, if any, following the investigation.90

An order for anticipatory bail, being an extraordinary remedy, can only be

passed, if apart from the conditions mentioned in Section 437 of Cr. P. C., there is

a special case made out for passing an order. The words under Section 438 “for a

direction under this Section” and “Court may, if it thinks fit, direct” clearly shoe

that the Court has to be guided by a large number of considerations including

those mentioned in Section 437 of the Code.91

Broadly stated, the two basic principles which must be kept in view while

considering the question of grant of anticipatory bail are (i) that there should be

no likelihood of the accused absconding, and (ii) that there should be no

likelihood of the accused misusing his liberty. Apart from the above two basic

principles, which have to be kept in view while granting bail either post-arrest or

90 K. Narayanswamy v. State of A. P., 1980 Cri LJ 588 at p. 592(AP).91 Kasturchand Ramlal Badjate v. State of Maharashtra, 1981 Cri LJ 1328 at p. 1331 (Raj).

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pre-arrest, Court have also to take into account (i) the nature and seriousness of

the accusation, (ii) the nature of the prosecution evidence, (iii) the severity of the

likely punishment in case the prosecution succeeds and (iv) the status of the

accused. While examining the nature of prosecution evidence for this purpose,

detailed examination of evidence and elaborate documentation should be avoided.

Broad circumspection is enough.92

While granting or rejecting an application for anticipatory bail under

Section 438 of Cr. P. C. there are various considerations, such as the nature or

seriousness of the proposed charges, a reasonable possibility of the applicant’s

presence not being secured, the reasonable possibility of the offence being

repeated for larger interest of public or State, the combined effect of which must

weigh with the Court. Where the accused was charged with abducting a person for

ransom, it was held that the Court would be justified in rejecting the application

for anticipatory bail because the abduction of person for ransom was a growing

menace especially in areas where the said incident took place. It was also held

that the criminals who preyed on the community or violated its fundamental

values by their repressive and aggressive conduct and imperiled the average

citizen’s sense of security and confidence in law and order should not be given the

benefit of Section 438 of Cr. P. C. especially when there was danger of repetition

of the act.93

While considering the application for grant of anticipatory bail the nature

of seriousness of the proposed charges and the context of the events likely o lead

to the making of the charges are relevant considerations. When a person is

accused of be offence of forgery and cheating involving a huge amount the court

has to be careful and circumspect in entertaining such an application. The court

can also ill-afford to ignore the contention of the State that the petitioner has been

making himself scarce and that number of documents are yet to be recovered and

evidence is yet to be collected and further that the investigation is at a crucial

stage. Such frauds and acts of cheating have to be taken seriously as they tend to

92 Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 at pp. 1812-13 (Bom).93 Harji v. State of Rajasthan, 1983 Cri LJ 1938 at p. 1939 (Raj).

219

affect the larger interest of the public and so also the State. Status in life,

affluence or otherwise are hardly relevant considerations for anticipatory bail

especially in a case like the one mentioned above.94

The approach of the Court in considering an application for bail either

under Section 438 or Section 439 of the Code is to take into consideration the

twin aspects of concern for personal liberty of the individual and protection of

process of investigation and public interest.95

Whether in a given case custodial interrogation would be more desirable

or not, or what should be the ground for refusing or granting a pre-arrest bail,

cannot be subject to mechanical application but mist depend upon the facts and

circumstances of each case. Where the apprehension of tampering with the

evidence or influencing the witnesses is reasonable, as may appear from the

attending circumstances, it would be relevant ground for refusing to issue

direction under Section 438, Cr. P. C. but not in all cases, irrespective of the

attending circumstances.96

The exercise of the power to grant anticipatory bail should be restricted to

exceptional cases, whose facts satisfy the conditions which are applied by the

courts while considering applications for bail in case of non-bailable offences.

Ordinarily, the Judiciary should not interfere with the police in matters which are

within their province and into which the law imposes upon them the duty of

enquiry. The power to interfere with the discretion of the police at the very

earliest stages of an investigation would, therefore, require to be exercised with

utmost care. Merely because it is alleged that the petitioner apprehends arrest on a

false accusation and that such arrest will be a cause of disgrace and dishonour to

him, the court will not be justified in granting anticipatory bail. The court has both

a right and a duty to satisfy itself that the apprehension is reasonable. If the court

chooses to accept the allegations made in the petition without applying its mind

and examining the materials available with the police, the court will be failing to

94 Subhash Chanana v. State, 1994 Cri LJ 2370 at p. 2373(Del).95 Surendra Kumar v. State of M.P., 1995 Cri LJ 1517 at p. 1519(MP).s96 State of Gujarat v. Dipak Jaswantlal Sheth, 1999 Cri LJ 162 at p. 169 (Guj).

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discharge its duty. In order to ensure that the provisions of section 438, Cr. P. C.

are not put to abuse at the instance of unscrupulous petitioners, notice of the

application for anticipatory bail should be given to the Public Prosecutor, though

the section in term does not say so.97

The same tests are to be applied by the court while considering an

application for anticipatory bail, which are applied by the courts while

considering applications for bail in case of non-bailable offences. In addition, the

court must be satisfied that the arrest and detention of the petitioner would be not

from motives of furthering the ends of justice in relation to the case, but from

some ulterior motive, and with the object of injuring the petitioner.98 In order to

ensure that the provisions of Section 438, Cr. P. C. are not put to abuse at the

instance of unscrupulous petitioners, notice of the application for anticipatory bail

should be give to the Public Prosecutor, though the section in terms does not say

so.99

With a view to avoid the possibility of the person hampering the

investigation, the court granting anticipatory bail may impose such conditions as

it thinks fit.100 One of the pre-condition for granting anticipatory bail is the

apprehension of being arrested in a non-bailable offence.101

In exercising the discretion for the grant of pre-arrest bail, the Court also

has to bear in mind the complications involved in the investigation of alleged

offences which might have been committed in the garb of commercial

transactions. Generally the investigation would always be hampered and

handicapped without custodial interrogation of the accused persons and the

possibility of destruction or loss of important documentary evidence in such cases

cannot be ruled out. The harassment or humiliation likely to be suffered by the

person accused of serious offences has to be weighed against the likely effect of

pre-arrest bail on the investigation, the other co-accused person, the victims of the

97 Bagoratji Mahapatra v. State, 1975 Cri LJ 1681 at p. 1683 (Ori).98 Ibid.99 Ibid.100 Ibid.101 Madan Mohan Behera v. State, 1988 Cri LJ 1574 at p. 1575(Ori).

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offences and the public in general. When serious offences are disclosed and

involvement of an accused person is prima facie, established, the Court would be

loath to lean in favour of grant of pre-arrest bail in absence of any other

overriding considerations.102

Grant of anticipatory bail cannot be refused merely because the applicant

failed to establish political or other enmity. Section 438 of Cr. P. C. covers cases

in which falsity of charge is not established provided of course, there is no

possibility of the accused absconding or misusing his liberty.103

6.13 Principles for Grant of Anticipatory Bail

Following are the principles and the matters to be taken into consideration for

refusing or granting an anticipatory bail.104

(a) The court must be cautious and circumspect in exercising the

power of grant of anticipatory bail because the said bail to some

extent interferes with the investigation of the crime.

(b) If the proposed accusation appears to stem not from motives of

furthering the ends of justice but from some ulterior motive, the

object being to injuring and humiliate the applicant by having him

arrested, a direction for the release of the applicant on bail in the

event of his arrest would generally be made. On the other hand, if

it appears likely, considering the antecedents of the applicant, that

taking advantage of the order of anticipatory bail he will flee from

justice, such an order would not be made.

(c) The considerations which are relevant for the grant of bail after

arrest are also relevant in regard to grant of anticipatory bail. Those

considerations are, “ the court before granting bail in cases

involving non-bailable offences particularly where the trial has not

yet commenced should take into consideration various matters

such as the nature and seriousness of the offence, the character of

102 Natvarbahi Pitamberbhai Patel v. State of Gujarat, 2004 Cri LJ 215 at p. 221 (Guj).103 Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 at p. 1812 (Bom).104 Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 at p. 1812 (Bom).

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the evidence, circumstances which are peculiar to the accused, a

reasonable possible of the presence of the accused not being

secured at the trial, reasonable apprehension of witnesses being

tampered with, the larger interests of the public or the State and

similar other considerations.”

(d) There is no bar to grant of anticipatory bail in respect of economic

offences.

Anticipatory bail is not to be granted as a matter of rule. It is to be granted only in

special cases where some influential persons try to implicate their rivals in false

cases for the purposes of disgracing them or for other purpose by getting them

detained in jail for some days.105

While recommending the introduction of anticipatory bail in India, the

Law Commission of India had mentioned in its Report that “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.” It was held that the above quoted

sentence in the Report of the Law Commission did not mean that anticipatory bail

has to be granted in each and every case, and that if that would have been the

intention then there would have been no necessity of retaining general provision

for bail in the Code after the provision for anticipatory, bail was introduced

therein. Ordinarily, there should be a presumption in favour of every citizen that

he is not likely to abscond or otherwise misuse his liberty while on bail. But such

presumptions are generally belied and one cannot be granted anticipatory bail on

that account. According to the said sentence, a person may be granted anticipatory

bail only when the Court is convinced that the person is of such a status that the

would not abscond or otherwise misuse his liberty. The provisions of S. 438 Cr. P.

C. are not to be mechanically applied. They operate upon the reasonable

apprehension of having been concerned with the commission of non-bailable

105 Narsingh Lal Daga v. State, 1977 Cri LJ 1776 at p. 1776 (Pat).s

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offence and require the Court to make an order consistently to indicate the reasons

as to why the Court is inclined to make the order of bail in anticipation of arrest of

such person. The phraseology “if it thinks fir” available in the body of the section

reading with sub-section (2) there of is indicative enough that such order on the

face of it must show the reasons for making the order.

6.14 Who can Apply for Anticipatory Bail?

A person apprehending arrest by Magistrate for remanding him to custody

under section 209 can apply for anticipatory bail under section 438.106 Where the

accused apprehends arrest in view of the fact that a non –bailable warrant has

been issued against him on the basis of charge sheet filed against him, he can

apply for anticipatory bail107

A person already on bail anticipatory bail cannot apply afresh for bail

anticipatory bail in respect of the same accusation.108 “He” in the expression “he

may apply to Court” occurring in S. 438 does not include a stranger or a tadhirkan

or a tout or a middleman.109 Hence a tadhirkar or an agent cannot affirm an

affidavit in support of an application for anticipatory bail.

6.15 Anticipatory Bail-who may be Granted

The anticipatory bail under section 438 may be granted to the following

persons: -

i) Government servants

ii) Minors

iii) Women

iv) Old man infirm persons

v) Handicapped persons

vi) Persons having permanent disability

vii) Persons who are involved in petty cases

viii) Persons who are likely to be harassed in police custody.

106 Jagan Nath Vs. State of Maharashtra 1981 Cr.L.J. 1808 (Bom).107 Natturasu v. State, 1998 Cr.L.J. 1762 (Mad)108 Natturasu Vs. State, 1998 CrLJ 1762 (Mad)109 In the matter of Bonnswan Dyutta 1998 Cr.LJ 1383 (Cal.DB)

224

For other category of cases the general law of bail is already provided in

section 439.

The discretion of granting anticipatory bail has to be exercised sparingly in

appropriate cases, with due care and caution imposing required conditions.110

Anticipatory bail is not to be granted lightly, indiscriminately and in any

event, that it should never be granted in situations where it would seriously affect

an investigation.111 While deciding the question of anticipatory bail, the court

would not be guided by the cover of the allegations but would look into the nature

of the allegations and would decide whether a prima facie case with which the

accused has been charged is made out or not.112

Where ingredients of offence, in the instant case of Section 366A IPC are

made out, anticipatory bail should be refused.

Without looking to the gravity of the offence, bail would not be refused

merely because the petitioner would influence the witnesses.113

6.16 Blanket Anticipatory Bail

A blanket order i.e. 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, should not

generally be passed. Such a blanket order is bound to cause serious interference

with the functions of the police.114

The power under section 438 is not to be exercised in a vacuum, but only on

satisfaction of the conditions spelled out in the section itself. The exercise of

power under section 438 is with regard to a specific accusation and cannot be

extended in a blanket fashion. So, no anticipatory bail can be granted with regard

110 Nanayan Singh Vs. State of M. P. 1996 Cr. L.J. 551 (M.P.)111 State of Karnataka Vs. Rangappa 2004 Cr.L.J. 2720 (2721) (Kant-DB)112 Rajesh Utna Kuman Vs. State of Chattisgarh (2003) 3 Cur Cri R 528:2002 Cr.LJ 1175

(1177) (Chatt).113 P.G. Gupta Vs. State (2002) 101 DLT 193 (2003) 66 DRJ 129: 2003 CrLJ 1055

(1056) (Del).114 Gurbax Singh Vs. State of Punjab, (1980) 2 SCC, 565, 1980 SCC (Cri) 465, AIR

1980 SC 1632.

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to an accusation not yet leveled on in respect of an offence not committed.115

Blanket anticipatory bail is not permissible.116

Conversely there is no blanket prohibition against granting of anticipatory

bail when the offence alleged is heinous e.g. murder.56

6.17 Blanket Order of Anticipatory Bail Not to be Passed

A “blanket order” of anticipatory bail should not generally be passed. This

flows from the very language of the section which requires the applicant to show

that he has “reason to believe” that he may be arrested. A belief can be said to be

founded on reasonable grounds only if there is something tangible to go by on the

basis of which it can be said that the applicant’s apprehension that he may be

arrested is genuine. That is why, normally, a direction should not issue under S.

438(1) Cr.P.C. to the effect that the applicant shall be released on bail “whenever

arrested for whichever offence whatsoever”. That is what is meant by a “blanket

order” of anticipatory bail, 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.117

Apart from the fact that the very language of the state requires that an

applicant seeking anticipatory bail must have a genuine apprehension of arrest,

there is an important principle involved in the insistence that facts, on the basis of

which a direction under S. 438(1) Cr. P.C. is sought, must be clear and specific,

not vague and general. It is only by the observance of that principle that a possible

conflict between the right of an individual to his liberty and the right of the police

to investigate into crimes reported to them can be avoided. 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

115 Thangapand Nadar Vs. State, 1982 Mad LJ (Cri) 250.116 S.S.Bariwal Vs. State of W.B. 82, Cal WN 428, Ramsewak Vs. State of M.P. 1979 Cr.

LJ 1485:1980 MPLJ 100117 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648.

226

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 for anticipatory bail will

be effective. The power should not be exercised in a vacuum.118

A blanket order should not be generally passed. It flows from the very

language of the section which requires the applicant to show that he has reason to

believe that he may be arrested. Normally a direction should not issue to the effect

that the applicant shall be released on bail “whenever arrested for whichever

offence whatsoever”. Such “blanket order” should not be passed as it would serve

as a blanket to cover or protect any and every kind of allegedly unlawful activity.

An order under Section 438 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.119

In a case, accused persons were involved in thousands of cases in different

parts of the country in view of allegations of cheating a large number of people,

and were in custody. While considering grant of anticipatory bail to the accused,

the Supreme Court held that if, an accused, being involved in a large number of

criminal cases in different parts of the country, is not able to get related from

custody even on getting bail orders in some cases, that by itself does not

tantamount to violation of the right of a citizen under Article 21 of the

Constitution. If an accused is alleged to have deceived millions of countrymen,

who have invested their entire life’s saving in such fictitious and frivolous

companies prompted by the accused and when thousands of cases are pending

against an accused in different parts of the country, he cannot at all complain of

infraction of Article 21, on the ground that he is not able to get released out of jail

custody in view of different production warrants issued by different Courts.

118 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1649.119 Adri Dharan Das v. State of W.B., (2005)4 SCC 303 at p. 312 : AIR 2005 SC 1057 :

2005 Cri LJ 1706.

227

Issuance of production warrants by the Court and the production of accused in

Court, in case where he is involved, is a procedure established by law and

consequently, the accused cannot be permitted to make a complaint of infraction

of his rights under Article 21. It would be a misplaced sympathy of the Court on

such white-collared accused persons whose acts of commission and omission has

ruined a vast majority of poor citizens of this country. The Supreme Court held

that, while such an accused could maintain a petition under Article 32, the Court

would not be justified in directing the release of such accused under a blanket

order as such a course of action would perpetrate gross injustice.120

The great of blanket anticipatory bail cannot be read into S. 438 Cr. P.C.

The said power is not unguided or uncancalised, but all the limitations imposed in

the proceeding S. 437 Cr.P.C. are implicit therein and must be read into S. 438 as

well. In addition to the limitations imposed in S. 437, the petitioner must further

make out a special case for the exercise of the power to grant anticipatory bail

which is of an exceptional type. He must prove that the charge leveled against

him is mala fide and stems from ulterior motive. Mere allegation of mala fides by

an offender and a vehement claim of innocence put forward by him are manifestly

insufficient for arriving at such a conclusion by the Court. The burden of

establishing the mala fides is on the person alleging it. It is for the petitioner to

prima facie substantiate his allegation that the charge of the serious non-bailable

offence against him has been leveled mala fide.121

In Vinod Tiwari v. State of M.P.,122 the applicant had set up a medical

institution without prior permission of the State Government, allegedly deceiving

and cheating students by fraudulent and dishonest inducement by making them to

purchase prospectus forms and to pay heavy fees. On apprehension that he may be

involved in several cases in this regard, he filed an application for anticipatory

bail. It was held by the M.P. High Court that a blanket order of anticipatory bail

cannot be passed, which is clear from the very language of Section 438(1) of the

120 Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at pp. 3826-27 : (2002)2SCC 210.

121 Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 at p. 1046.122 1996 Cri LJ 2096 at pp. 2101-2 (MP).

228

Code which requires the applicant to show that he has “reason to believe” that he

may be arrested on an accusation of having committed a non-bailable offence.

Therefore, unless there is such an accusation merely on the ground of fear or even

apprehension that he may be involved in a number of cases, the blanket order of

anticipatory bail in favour of the accused by the Court cannot be granted as each

case has to be considered on its merits on the principles governing in the matter of

grant of bail. Therefore, it was held that the anticipatory bail granted under

Section 438(1) of the Code by a blanket order, was contrary to the law, and hence

it was liable to be cancelled.

Granting blanket protection under Section 438 of the Code is not

envisaged. In the instant case, the accused who had been granted anticipatory bail,

were directed by the Supreme Court to surrender within a period of four weeks

before the court concerned and seek regular bail.123

Protection under S. 438 Cr.P.C. could be claimed only against specified

accusation and not against possible arrest in general against unspecified existing

accusations or accusations likely to arise in future. What is contemplated is not a

blanket protection. If that be so anybody could approach the Court and request

that he may be directed to be released whenever and wherever in connection with

any case and under the cover of such an order any offence could be committed

with the assurance that he will be released if arrested. That is not what the section

contemplates. So also the Court also could grant the relief only as against arrest in

connection with existing specified accusations. It is true that in order to invoke the

provision it is not necessary that a case has already been registered or even a first

information has been lodged. But the Court must be satisfied that there is a

reasonable chance of arrest in connection with some specified accusation.124

In a case, when the Enforcement Directorate under “FERA’ moved the

High Court challenging an order passed by a Sessions Judge granting anticipatory

bail to the respondent, the High Court made the position worse for the

123 Naresh Kumar Yadav v. Ravindra Kumar, (2008)1 SCC 632 at pp. 634-638.124 Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1113

(Ker) : 1985 Mad LJ (Cri) 263.

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Enforcement Directorate. Noting that it was quite unusual situation, the Supreme

Court observed that officials of the Directorate were now injuncted by the High

Court from arresting the respondent and the time and places for carrying out the

interrogations were also fixed by the High Court. Observing that such kind of

supervision on the enquiry or investigation under a statute was uncalled for, the

Supreme Court held that such type of interference would impede the even course

of enquiry or investigation into the pending serious allegations. For what purpose

the High Court made such interference with the functions of the statutory

authorities, which they were bound to exercise under law, was not discernible

from the said order. The Supreme Court held that it is not the function of the

Court to monitor investigation processes so long as such investigation does not

transgress any provision of law. The Supreme Court further observed that it must

be left to the investigating agency to decide the venue, the timings and the

questions and the manner of putting such questions to persons involved in such

offences, and that a blanket order fully insulating a person from arrest would

make his interrogation a mere ritual.125

In B.V. Seetharama v. State of Karnataka,126 the petitioners had asked for

blanket order of anticipatory bail as their prayer was to grant them relief of

anticipatory bail in all the future cases to be registered against them anywhere in

the State of Karnataka for the aforesaid offences relating to publication of an

article in newspapers relating to Jain religion and some Jain saints. Two such

offences had already been registered at different places in which the petitioner

were arrested and were granted bail. However, the Karnataka High Court held that

such a relief of blanket order of anticipatory bail could not be granted. It was held

that the petitioners must show that they had “reason to believe” that they may be

arrested for non-bailable offence. The use of the expression “reason to believe”

means that the petitioners’ apprehension must be founded on reasonable grounds.

Mere ‘fear’ is not ‘belief’. The petitioners will have to show the imminence of a

125 Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun KumarBajoria, AIR 1998 SC 696 at p. 698 : 1998 Cri LJ 841 : (1998)1 SCC 52 : 1998 SCC(Cri).

126 2007 Cri LJ 3503 at pp. 3503-4 (Kant).

230

likely arrest founded on reasonable belief. Anticipatory bail is a device to secure

the individual’s liberty and it is neither a passport to the commission of the crimes

nor a shield against all and any of the crimes.

While considering the claim of pre-arrest bail in a petition filed S. 438 of

the Code normally/generally blanket protection such as not to arrest the petitioner

without intimation to him or to give advance notice before arresting him should

not be given. It was held that these principles are applicable in the instant case

also in which a writ petition under Article 226/227 of the Constitution had been

filed.127

6.18 F.I.R. Not A Pre-Condition

Filing of FIR is not a condition precedent for preferring and disposing an

application for anticipatory bail.128

As held in a Madras case no anticipatory bail is to be granted when no

case has been registered against the petitioner.129 This observation, it is humbly

submitted runs counter to the ratio of Gurbux Singh Vs. State of Punjab,130 where

it has been stated that legislature has conferred wide discretion on the High Court

and the courts of Session to grant anticipatory bail, because it evidently felt,

firstly, that it would be difficult to enumerate the conditions under which

anticipatory bail should or should not be granted, and secondly because the

intention was to allow the High Courts a somewhat free hand in the grant of relief

in the nature of anticipatory bail. It has further been observed categorically by

Supreme Court the filing of first information report is not a condition precedent to

the exercise of the power under section 438 Cr. P.C. The imminence of a likely

arrest founded on a reasonable belief can be shown to exist even if an FIR is not

yet filed.

127 Bharat Inder Singh Chahal v. State of Punjab, 2007 Cri LJ 4490 at p. 4496 (P & H).128 In re. Digendna Sankan 1982 Cr. LJ 2197 (Del.)129 Sankarnarayana Vs. S. I. of Police, 1983 Mad LJ (Cri) 13.130 Gurbax Singh Vs. State of Punjab, (1980) 2 SCC, 565, 1980 SCC (Cri) 465, AIR

1980 SC 1632.

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6.19 Duration of Anticipatory Bail

The operation of the order passed under sub-section (1) should not be

limited in point of time.131 Anticipatory bail once granted must be held to be

operative till the conclusion of the trial, unless it is cancelled under section 439.132

In the under mentioned case.133 The Supreme Court has held that it is necessary

that anticipatory bail order 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 the appreciation

of evidence placed before it after the investigation has made progress or the

charge-sheet is submitted.

Anticipatory bail once granted its duration and effect continues till the

conclusion of trial or till it is cancelled.134 Even if a non bailable warrant is issued

by a Magistrate, he is to recall it when the accused had obtained an order of

anticipatory bail.135

6.20 Interim Order of Anticipatory Bail

The grant of interim bail can hardly be a circumstance while deciding the

anticipatory bail on merits.136 The High Court or Court of Sessions cannot stay the

arrest of an applicant under this provision during the pendency of the application.

However, High Court under section 482 can pass an order of interim bail in

appropriate cases.137 When the accused a driver has to remain normally out of his

village and he had no knowledge of the offence and when co-accused have been

acquitted interim bail can be granted. Interim anticipatory bail can be granted to

the petitioner even in the absence of the records.138

131 Genbaksh Singh Sibl.ia Vs. State of Punjab AIR 1980 SC 1632 (1980) 2 SCC565:1980 Cr.L.J. 1125.

132 Nattunasu Vs. State, 1998 Cr. L.J. 1762 (Mad).133 Saluddin Abdul Samad Shaikh Vs. State of Maharashtra (1996) 1 SCC 667 (668): AIR

1996 SC 1042: (1966) 1 SCC 667.134 B. L. Verma Vs. State of M. P. 1979 Cr. L.J. (NOC) 190 (MP) ILR 1979, MP 748:

1979 Jab LJ 419.135 Puran Chand Gupta Vs. State of Punjab 1980 Punj. LR 694, 701.136 Dianusidari Prasad Vs. State of Bihar, 1990 (3) Crimes 524 (Pat)137 Anant Vasant Joshi Vs. State of Maharashtra, 1986 (1) Crimes 170 (Bom)138 Sanjeev Chandel Vs. State of H.P. (2003) 2 Rec Cri 450: 2003 Cr.LJ 935 (936).

232

An interim anticipatory bail for a limited period may be granted by the

Court even without issuing notice to the Public Prosecutor pending consideration

of the petition on merits.139 An interim anticipatory bail may be granted even for a

limited period for want of jurisdiction. In cases where there is no likelihood of the

accused fleeing from justice or tampering with the evidence or a clear case of

custodial interrogation is not made out, and application for grant of anticipatory

bail cannot be heard at an early date, interim protection should normally be

provided to such accused persons. Where the application for anticipatory bail is

pending before the High Court, and the Court has granted interim anticipatory

bail, the accused can file bail for regular bail before the Sessions Court only with

the permission of the High Court.

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 prosecution 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.

6.21 Notice to Public Prosecutor and Anticipatory Bail Petition

Before granting anticipatory bail notice to Public prosecutor should be

given although section 438 Cr. P.C. 1973 in terms does not say so.140

Supreme Court said without notice to Public Prosecutor anticipatory bail

may be granted; but notice should be issued to the public prosecutor or the

Government Advocate forthwith and the question of bail should be re-examined

in the light of respective contentions of the parties.141 When no sufficient

opportunity is given to Public Prosecutor to oppose the prayer of anticipatory bail,

the order granting anticipatory bail is liable to be quashed.142

139 N.Surya Rao Vs. State of Maharashtra 2001 (2) Andh LT (Cri) 341 (343):2002 Cr.LJNOC170 (AP):Baci and Vs. State of AIP.AIR 177 SC 366:Gurbaksh Singh Vs. State ofPunjab AIR 1980 SC 1632.

140 Bhagirath Mahapatra v. State of Orissa, 1975 Cr. L.J.1681: 41 Cut. LT 619, State ofMaharashtra V. Vishwas, 1978, Cr. L.J. 1403.

141 Gurbax Singh Vs. State of Punjab, (1980) 2 SCC, 565, 1980 SCC (Cri) 465, AIR1980 SC 1632: 1980 Cr. L.J. 1125.

142 State of Maharashtra v. Hanumantrao, 1980, Cr. L.R. 526

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An order of bail can be passed without notice to the Public Prosecutor. Butnotice should be issued to him or the Government Advocate forthwith and thequestion of bail should be re-examined in the light of the respective contentions ofthe parties.143 As a matter of abundant caution notice may be given to thecomplainant also.144 On an application for grant of anticipatory bail, theinvestigating agency would be given reasonable time to file objection to theapplication. Where the copy of the application was severed on the appellant onlyin the afternoon the order for bail passed on the next day would be set aside.145

6.22 Presence of the Petitioner (Sub Section 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 theCourt, if on an application made to it by the Public Prosecutor, the Courtconsiders such presence necessary in the interest of justice. This amendment inthe section will come into force from the date of its notification.6.23 Whether Anticipatory Bail can be Granted even AfterWarrant/Summons has Been Issued?

Section 438 applies to all non-bailable offences. It is not confined to dulythose non-bailable offences which are punishable with death or imprisonment forlife.146 Anticipatory bail can be granted in respect of non bailable offenceswhether they are cognizable or non-cognizable offences.147 Anticipatory bailcan be granted even after the Criminal Court has taken cognizance, and summonsor warrant has been issued by the Court,148 though in the under mentioned case,149

contrary view has been taken.

143 Gurbaksh Singh Sibia Vs. State of Punjab, AIR 1978 P&H 1: 1978 Cr.LJ 20 GurbakshSingh Sibia Vs. State of Punjab, AIR 1980 SC:1632 (1980) 2SCC 565:1980 Cr.LJ1125; State of Assani Vs (Dn) Bnolen Gogoi, AIR 1998 SC 143:1999 SCC (Cri) 403.

144 Chandnakant Chandulal Bhansali v. Srikant Shrikrishna Johsi, 1993 (2) Crimes 389(Bom).

145 Union of India v. Yusuf Razak Dhanani (2003) 8 SCC 908: 2003 SCC (Cri) 1963:2003 Cr.LJ 4560 (4561) (SC).

146 State of Andhra Pradesh v. Birnal Krishna Kundu, AIR 1997 SC 3589:AIR 1997SCW 3700: 1997 Cr.LJ (4058):1997 SCC (Cri) 1245.

147 Suresh Vasudeva v. State, 1978 Cr.LJ 677 (Del).148 Akhalaq Ahmed F. Patel Vs. State of Maharashtra, 1998 Cr. LJ 3969 (Bom); Shikh

Khasin Bi v. State AIR 1986 AP 345: 1986 Cr.LJ 1303 (FB)149 Ashok Kumar V. State of Orissa, 2000 Cr.LJ 1975 (On) Kundal Majumdar Vs. State of

Tripura, 2002 Cr. L. J. 353 (Gau).

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6.24 Duty of Court in Serious Offences

It is not appropriate and prudent to grant anticipatory bail in serious

offences like murder etc., which may cause prejudice by its very nature and

thing.150 Even assuming that Public Prosecutor consented for grant of anticipatory

bail, judicial propriety demands Sessions Judge to take into consideration the

serious nature of the accusation and gravity of the commission of the offences of

double murder, the incriminating material collected during the course of

investigation till then including their arrest, the possibility of their making a

fervent attempt in defacing or tampering with the evidence available on record in

a bid to escape from the clutches of law, which would hamper the further progress

of investigation.151 The possibility of false implication of an accused, the chances

of the accused misusing his liberty and the possibility of himself not making

available for the purpose of investigation are some of the factors which ought to

be borne in mind by the Court while dealing with the grant or refusal of

anticipatory bail.152

6.25 Grant of Anticipatory Bail in Exceptional Cases

The power of anticipatory bail has to be exercised sparingly and in

exceptional cases.153 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.154 When

power under section 438 is exercised without giving reasons or on irrelevant

considerations not germane to the determination of the application, the Supreme

Court has to interfere in order to avoid miscarriage of justice.155 Bail should not

be granted without due application of mind to the facts of the case. An indirect

use of the power to grant bail would be an abuse of the judicial process and would

150 Pokan Rani Vs. State of Rajasthan, AIR 1985 SC 969, 1985 Cr.LJ 1175.151 N.K. S.M. Shahul 1-laineed Vs. Mohamedlbnahi N. 1992 CrLJ 230 (Mad).152 Bansi Lal Vs. State of Haryana, 1978 Cr. LJ 472 (P&H).153 Balehand Jain Vs. MI, AIR 1977 SC 366: (1977) 2 SCR 52: 1977 Cr. LJ 225154 Gunbaksh Singh Vs. Punjab AIR 1978 P&H 1.155 Pokan Ram v. Rajasthan 1985 Cr. LJ 1175 (SC) AIR 1985 SC 969 (1985) 2 SCC 597.

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shake the confidence of the general public in the judiciary.156 A person should be

granted anticipatory bail only when the Court is convinced that the applicant is

such a person who would not abscond or otherwise misuse his liberty.157 The

jurisdiction under section 438 is not to be freely exercised without reference to the

nature and granting of the offence alleged, the possible sentence that may be

ultimately imposed, the possibility of interference with the investigation or the

witnesses and the public interest.158

There cannot be inexplicable formula in the matter of grant of bail. In other

words, no hard and fast rule can be laid down in discretionary matters like the

grant or refusal nor can there be an inflexible principle governing the exercise or

discretion except that discretion should be exercised judiciously having regard to

peculiar facts and circumstances of each case. The court is not expected to

conduct a pre-trial of the case and consider the probability of guilt or innocence,

but can certainly look into the material available on record for exercise of its

power. The fact that offence is a serious one is not by itself a good ground for

refusal, if otherwise entitled to.159

6.26 Power to Impose Conditions

The court has the power to impose conditions while granting anticipatory

bail.160 An order under the section for the release of a person on bail after his

arrest could be limited in point of time.161 There are no in-built restrictions to

consider an application for anticipatory bail. At the same time this discretionary

power can be exercised and whenever necessary, restrictions and conditions can

be imposed.162

In persecution for offence under sections 406/498-A IPC, while granting

bail imposition of condition that the accused husband shall deposit certain amount

156 State v. Yoginder Kumar 1985 CrLJ 685 (Del)157 Nansingh Lal Daga v. State 1977 CrLJ 1776 (Pat)158 Ninbhay Signh v. State of M. P. 1995 CrLJ 3317 (MP-FB).159 R.L. Jalappa Vs. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant.)160 Gurbaksh Singh Sibbia Vs. State of Punjab, 1980 SC 1632: 1980 Cr.LJ 1125 (1980) 2

SCC 565.161 I.Y.Chandra Earappa Vs. State of Karnataka, 1989 Cr.LJ 2405, 2414 (Kant-DB).162 N.K. Nayar Vs. State of Maharashtra 1985 Cr.LJ 1887: 1985 (2) Crimes 304, 307

(Bom-DB).

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for protecting interest of wife was held invalid.163 The imposition of other

conditions must have some nexus with the object of stipulating such other

conditions of direction to pay certain amount to some person has no nexus it is

nothing but amounts to enforcement of a civil liability such a condition cannot be

imposed.164 Where accused involved in offence under sections 420, 406, 467, 468,

471 and 120-B IPC, was enlarged on bail subject to deposit of Rs.10 crores, it was

not a proper exercise of discretion, hence the order as to deposit of Rs.10 crores

was set aside.165 Where a person applies for bail in a case accused of

embezzlement, that the accused should deposit the embezzled amount or should

furnish bank guarantee therefore, is not relevant and not unsustainable.166

6.27 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.167 By and large the following

legal principles amongst others, would be relevant in the matter of consideration

of the question of cancellation under section 439 (2) by the High Court of

anticipatory bail granted under section 438 or of bail granted under section 439

(1) by the Sessions Judge. Normally, very cogent and overwhelming grounds or

circumstances are required to cancel the bail already granted.168

(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

163 Sunil Sharma Vs. State 1993 Cr.LJ 3628(Del) Dines/I Alluwalia Vs. State (2002) 99DLT-3878 (2002) 64 DRJ 427:2003 Cr.LJ.980(982)(Del)

164 V. Satyanarayana Vs. State of A.P. 2000 Cr.L.J 605 (AP); Shaik Layak Vs. State, 1981Cr.LJ 14 (AP): Darshan Signh Vs. State of Rajasthan, 1993 Cr.LJ 1973 (Raj.)

165 Avinash Arora Vs. State of U.T. Chandigarh, AIR 2000 SC 3563 (1):AIR 2000 SCW3563: 2000 CrLJ.4674 (SC)

166 Darshan Signh Vs. State of Rajasthan, 1993 Cr.LJ 1973 (Raj.). Banwari Lal V. Stateof Rajasthan, Rasj. Cri C.158 (Raj.)

167 Bolai Mistry v. State, 1977 Cr.LJ 492 (Cal-DB).168 Mahant Chand Nath Yogi v. State of Haryana AIR 2003 SC 18: (2003) 1 SCC

326:2003Cr.LJ 76(82) (SC) Subi endu Mishra v. Subrat Kumar Misra, AIR 1999 SC3026.

237

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 cancellation of such bail.169

(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 taken into account in

granting anticipatory bail or bail.

Where an accused was enlarged on bail in the event of his arrest for

offences alleged under sections 289, 337 and 304-A IPC, but about 33 days later

the offences were altered to sections 302 and 307 IPC,170 for about a year since

grant of bail accused has not violated any of the conditions of bail and police have

not filed charge sheet even after lapse of a year and two months and in the

absence of cogent and overwhelming circumstances cancellation of anticipatory

bail is not justified.

An improper grant of bail is one of the circumstances for cancellation of

the same.171 Where accused in gang-rape influential and rich was granted

anticipatory bail not on merits but on other considerations was not taking interest

in the investigation., anticipatory bail was cancelled.172 Where there were

169 A. K. Murumu v. Prasenjit Choudury 1999 Cr.LJ 3460 (3468) (Cal-DB).170 Uttaranchal v. State of J & K, 1989 (2) Crimes 626, 630 (J&K-DB).171 Suresh Chandra Gin v. State of Orissa, 1988 (3) Crimes 428 (On).172 Court on its own motion Vs. Sanjay, 1995 Cr. L.J. 1824 (P&H).

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serious allegations of dowry death and the investigation was in progress, the

anticipatory bail granted was liable to be cancelled.173 Where anticipatory bail

was granted by the Sessions Judge turning down the request of the police to grant

reasonable time to recover property without giving reasons, was cancelled.174

Merely because the accused has not controverted the allegations made in the

petition for cancellation of bail would not be ground for cancellation of

anticipatory bail.175

Anticipatory bail may be cancelled under section 439 (2) if the accused is

found to be tampering with prosecution evidence.176 When this section permits or

making of an order and order is made granting anticipatory bail, it is implicit that

the court making such an order is entitled upon appropriate consideration to

cancel or recall the same. It is not necessary for such purposes to find out any

further specific provision conferring power of cancellation.177 The cancellation 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.178 Very cogent and overwhelming circumstances

are necessary for an order seeking cancellation of bail.179 Where accused facing

prosecution under sections 406 and 498A IPC have been released on bail, bail

would not be cancelled merely because articles of stridhan have not yet been

returned.180 A reasoned and well considered order granting anticipatory bail

would not be cancelled by the High Court by mere observation that bail has been

obtained by dubious means.181

173 Kitniben v. State of Gujarat, 1992 Cr. L.J 1994 (Guj).174 Gabriel Joseph Vs. Fero Gulain Sarvar Khan, 1992 Cr.LJ 458 (Bom).175 Sanmnukha Swamy V. State of A.P. 2001 (2) Andh LT (Cri) 131 (132):2002 Cr.LJ NOC

277 (MP).176 Jairam Tiwari Vs. State of Bihar, 1987 Cr.L.J. 254 (Pat).177 State of Maharashtra v. Vishwas, 1978 Cr.LJ 1403,1405 (Bom-DB).178 Vishwanath Tiwari Vs.State of Bihar, 1988 Cr.LJ 333 (Pat).179 Rajan Mahajan Vs. State, 2002 Cr.LJ 2433 (2434) (Del); Bhagirath Singh Vs. State

of Gujarat, AIR 1984 SC 372:1984 Supp.SCC 372:1984 Cr.LJ 160.180 Rajan Mahajan Vs. State, 2002 Cr.L.J. 2433 (234) (Del).181 Mahant Chand Nath Yogi V. State of Haryana, AIR 2003 SC 18 (2003) 1 SCC 326:

2003 Cr.L. J. 76 (81), 82) (SC)

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Where the High Court had refused anticipatory bail and the Supreme Court

had refused to interfere with the order of refusal passed by the High Court,

anticipatory bail subsequently granted by the Sessions Judge was cancelled.182

6.28 Judicial Trends

A judicial approach to the exercise of discretion has been a cautious one. It

does not and perhaps cannot, exercise the power on the assumption that a

frivolous accusation may be at the back of a proposed or initiated criminal

proceeding. The nature of accusation is likely to determine the attitude of the

court in this regard. The discretionary power is to be exercised only after a notice

to the public prosecutor is given and necessary reasons are recorded if the court

considers granting of bail is necessary in the interests of justice.

The Patna High Court ruled that the provision be used in cases where “the

court is convinced that the person is of such a status that he would not abscond or

otherwise misuse his liberty”.183 The court further said that even before this

provision was introduced, there had been a practice in vogue which enabled a

court to release on bail such persons without a surety or on their having given a

personal undertaking that they would appear before the court if required to do

so.184

The above view is in consonance with the general judicial attitude of taking

a restrictive view of the personal liberty aspect of the matter. Personal liberty is to

be enjoyed by all and in an equal measure. It has no relation with the status of a

person with the status of a person as such, which the society so often measures

only in terms of his material wealth and power. The Law Commission’s criterion

has been that the justification for denying personal liberty to a person ought to lie

on the apprehension of his absconding or misusing his liberty but this approach

has explicitly been qualified by the Patna High Court when it observed:

Ordinarily, there should a presumption in favour of every citizen

that he is not likely to abscond or otherwise misuse his liberty

182 Dharampal Vs. State of Punjab (2002) 1 P&H 477 CrLJ 1621 (1623) (P&H)183 Narsingh Lal Daga Vs. State, 1977 Cr. LJ 1776 (Pat)184 Id. At 1977.

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while on bail. But such presumptions are generally belied and one

cannot be granted bail on that account.185

The foregoing observations of the court need to be viewed a fresh in the

light of the views of the Law Commission, which recommended the use of such a

mechanism as a measure to promote interests of personal liberty, and the wisdom

of the legislators who formulated, debated and passed the Bill. It is, however, not

suggested that denial of this relief to the petitioner involved in the breach of law

committed under section 7 of the Essential Commodities Act, 1955 and rule 194

of the Defence of India and Internal Security of India Rules, 1971, had been

incorrect.186 What is being said has incidentally put a dent in the basic concept of

bail as the facility of anticipatory bail being made available to economic

offenders.187 The judicial efforts have thus extended the scope of this facility to

a class of persons which were not within the purview of the Law Commission’s

proposal. The Commission sought to restrict the use of anticipatory bail to

frivolous cases arising out of political rivalries.

The purpose underlying section 438 of the code is to ensure that a person

anticipating arrest is not obliged to go to jail till he is able to move the court for

being released on bail. But it cannot also be construed that such a direction should

be allowed to come in the way of police investigations nor should it seek to

circumscribe police powers relating to remand to police custody for purposes of

facilitating investigation. Accordingly, in Samabhai Vs. State of Gujarat,188 the

court observed that a direction for anticipatory bail would not be allowed to come

in the way of a fuller consideration of the question of custody of the person when

the investigations are incomplete. The court further said:

The order may, therefore, provide that it will exhaust itself on or

will remain operative only till the expiry of ten days from the date

of the arrest and the accused will have to obtain a fresh order in

185 Ibid.186 Balchand Jain Vs. State of M.P. 1977 Cr.LJ 225, 227, 229, 232-38 (SC).187 Joseph Vs. Asstt. Collector of Customs, 1982 Cr.LJ 559, 564 (Mad); Suresh

Vasudeva Vs. State, 1977 Cr.L.J. 596 (P&H).188 1977 Cr. LJ 1524 (Guj).

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usual course…. To avoid complications, instead of unlimited

duration the order may provide that it will become inoperative if

no arrest is made say within 90 days of the order.189

In an application for grant of anticipatory bail before the Punjab and

Haryana High Court,190 two influential parties were pitched against each

other, to make the contest “unnecessarily prestigious”. The court was required to

intervene in the matter by way of granting bail to the members of one party who

feared arrest on the basis of a first information report which showed that two shots

were fired in the air by some unknown persons in a meeting of a registered

society. No person was found hurt as a result of the reported shooting incident and

even three weeks of police investigation could also not reveal as to who fired

these shots. In such circumstances, the court issued direction for anticipatory bail.

In Badri Prasad Pathya Vs. Stat191 the Madhya Pradesh High Court has,

however, endorsed the view that grant of anticipatory bail is mainly meant to

relieve a person from being unnecessarily deprived of liberty; though in the

instant case the consideration of high hazards of releasing the persons alleged to

be involved in a prima facie case of murder weighed with the court in rejecting

the application as against their claims for personal liberty.

A search for factors guiding the issue of directions for anticipatory bail is

continuous. Some conditions are already incorporated in clause (2) of section 438

of the Code of Criminal Procedure, 1973. In applying these conditions to specific

situations the court may find it convenient to take into consideration factors like,

gravity of the offence, nature of the accusation, character and antecedents of the

petitioner as well as some such other clichés as are generally found in the judicial

store-house and are so often relied upon. It may be said that search for guidelines

may oblige the court even to fall back upon considerations indicated under section

437 of the Code, which provide for grant of bail in non-bailable cases, although

189 Ibid.190 Narinder Singh V. State, 1977 Cr.LJ 596 (P&H).191 1977 Cr. LJ (NOC) 130 (M.P.)

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proceedings under section 438 for the direction of anticipatory bail are to be

invoked during the pendency of investigation and not after it.

But the question when raised before the Karnataka High Court in I.Y.

Chandra Earappa V. State of Karnataka192 in terms that whether the limitation of

court’s power not to grant bail to certain categories of accused under section 437

would be applicable to its jurisdiction under section 438, the court answering in

the negative reasoned:

The foundation of the belief spoken of in section 437 (1) by reason

of which the court cannot release the applicant on bail is, normally

the credibility of allegations contained in the F.I.R. in the majority

of cases falling under section 438, that data will be lacking for

forming the requisite belief.193

In Balchand Vs. State of M.P.194 the Supreme Court noted:

The Legislature in enshrining the salutary provision in Section 438

of the Code, which applies only to non-bailable offences, was to

see that the liberty of the subject is not put in jeopardy on frivolous

grounds at the instance of unscrupulous or irresponsible persons or

officers.195

At the same time, the court stressed that “this being an extraordinary power

should be exercised sparingly and only in special cases”. With a view to giving

effect to the above, the court further said the rule of prudence requires that notice

should be given to the other side before passing a final order of anticipatory bail,

so that a wrong order of anticipatory bail is not obtained by a party by placing

incorrect or misleading facts or suppressing material facts.196

Anticipatory bail cannot be invoked as a matter of right. It cannot be used to

thwart investigation or to defeat an exercise of proper police powers needed for

purposes of investigation. However, when police actions prejudicially tend to tilt

192 1989, Cr. L.J. 2405 (Kant).193 Ibid.194 1977 Cr. L.J. 225 (SC)195 Id. At 134 (per Fazal Ali, J.)196 Ibid.

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the balance against a party whose personal liberty is likely to be jeopardized

without fuller justification under the law, courts can exercise discretion to issue a

direction of anticipatory bail. This facility remains confined to persons

apprehending arrest during pendency of investigation of non-bailable offences.

The discretionary power under section 438 of the Code is, thus, not an

exercise of independent jurisdiction, but is dependent on seriousness of the

accusation. For grant of anticipatory bail, the court has to be guided by a large

number of considerations, including those contained in section 437, which deals

with the bail in non-bailable cases.197 The court cannot show laxity in exercise of

discretion for grant of bail in anticipation. It cannot be said to be the intention of

the legislature that investigation and initiation of criminal proceedings

against a person should be hustled and an escape route be provided for persons

alleged to have committed grave and heinous crimes by securing an easy bail at a

stage not yet been reopened for pre-trial police action under the code.

In Padmacharan Panda Vs. Ram Mohan Rao,198 the Orissa High Court

rules that an accused can be granted anticipatory bail at the stage before the case

is committed to the sessions court. At the first instance, the police after

investigation dropped the complaint. Later, on the basis of a protest petition an

inquiry was conducted and the offences under sections 149, 324, 337 and 296 IPC

as well as under sections 3 and 4 of the Explosives Act 1884, were taken

cognizance of by the court. Summons were issued and after granting bail the case

proceeded. At that stage the accused prayed for anticipatory bail and the sessions

court granted the same. The opposite party moved the High Court to get this order

cancelled. The court ruled that the order in the circumstances of the case was

valid.199

The question whether the high court could grant anticipatory bail after the

trial court has taken cognizance of the offence and issued process was dealt with

197 G. Muthuswamy Vs. State of Kerala, 1980, Cr.L.J. 1021, 1022 (Ker): Balchand Jain supranote 17, but also see Gurbaksh Vs. State of Punjab, 1980 Cr.L.J. 1125 (SC) NarsimhaRao Vs. State, 1997 Cr. L.J. 961.

198 1987 Cr. L.J. 923.199 See also Sheikh Khasim Vs. State, 1986 Cr. L.J. 1303 (AP).

244

in Shaik Khasim Vs. State.200 The Andhra Pradesh High Court categorically ruled

after examining the precedents that “the filing of a charge sheet by the police and

issuing of a warrant by the magistrate did not end the power to grant bail under

section 438 (1)”

Both the High Court and the sessions court have concurrent jurisdiction to

grant anticipatory bail under section 438. An impression that the accused should

first apply to the session court has been disapproved by the Andhra Pradesh High

Court.201 The Patna High Court has also ruled that anticipatory bail can be granted

by a special judge appointed to deal with cases under the Prevention of

Corruption Act.202

The question whether a High Court can grant anticipatory bail in respect of

an offence committed outside the territorial jurisdiction has been answered

differently by different high courts. The M. P. High Court after a survey of

decisions agreed203 with the Punjab and Haryana High Court and Jammu and

Kashmir High Court in Ravinder Mohan Vs. State of Punjab204 and Mohan Singh

Versus Commander of Police205 respectively which have replied it negatively.

The Court pointed out that combined reading of section 438 and chapter XIII of

the Code indicate that jurisdiction to try the accused for an alleged offence has to

be determined with reference to the area within which the offence is committed.

An application for anticipatory bail can be entertained by the local court having

jurisdiction to try the accused. Similarly, the question whether anticipatory bail

can be granted by any high court or sessions court irrespective of the locale of the

commission of the offence came up for decision in Syed Zaful Hassan Vs.

200 Ibid.201 Y. Chandrasekhara Rao Vs. Y.V. Kamala Kumari, 1993 Cr. L.J.3508 (AP).202 In the matter of reference made by Shri Ravinandhan Shahay, Sessions Judge, Patna,

1993, Cr.L.J. 2436 (Pat) (FB).203 Pradeep Kumar Soni v. State of M.P., 1990, Cr. L.J. 2055 (MP).204 1984 Cr. L.J. 714 (P&H).205 1983 Cr. L. J. 1182 (J&K): see also infra note 62.

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State.206 The Patna High Court after examining the scheme of the Code and the

precedents concluded that the courts have territorial jurisdiction in respect of the

offences should have power to grant anticipatory bail.

6.29 A Critique

The facility of anticipatory bail has won a fair legitimacy in the criminal

justice system and protection of personal liberty, but it is not taken gladly by all.

According to the contrary opinions, as pointed out earlier, the inclusion of a

provision for anticipatory bail in chapter XXXIII of the Code is bound to create

confusion in the concept of bail, as well as in the application of principles of bail.

It would perhaps be desirable and appropriate to insert such a provision

elsewhere. It would even have been dealt with separately to meet the type of

situations referred to under that provision, because the provision caters to an

entirely different class of persons not termed as accused and are not under arrest.

The system of bail is improvised to curtail, control and abridge the

dominion of authority over an apprehended accused. The mechanism of bail

presupposes that the person seeking bail is an accused who already has been

apprehended by police for keeping him in custody to make him appear before the

court at the required time. Once the accused is brought before the court, police has

to obtain its orders for custody of the arrested person. Custody of the accused

person can be given either to the state or to the community. In the first situation,

the accused is remanded to police or to judicial custody as the case may be.

Alternatively, he may be released on bail at his request upon his execution a bond

or maybe given in the charge of a third party coming forward as a surety and

furnishing a bail bond. In latter situation the custody of the accused is deemed to

have been given to the self of the accused or to the community. Unlike an accused

who is seeking bail, a person by moving the court for anticipatory bail may not be

206 1986 Cr L J 605 (FB).

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present before the court. He can ask for bail even in absentia207 because of a likely

apprehension of his arrest. Thus, the constituents of bail are completely absent in

the case of ‘anticipatory bail. Hence custody of a person seeking bail cannot be

had either with the state or the community, which makes the purpose of bail

redundant.

The mechanism of bail has been contrived to meet problems of an

apprehended accused, in whose case his interim release is to be secured with an

assurance. The assurance has to be that his presence on an appointed day before

the court will be available, so that the court may discharged its obligation of

accomplishing the task to try the accused which is incumbent upon it as the

judicial process. Nothing of the above kind exists when proceedings for

anticipatory bail are invoked.

The use of bail mechanism for the purpose intended to be covered by the

term anticipatory bail tantamounts to misuse of the machinery of criminal justice.

In fact, the misuse of bail mechanism is a contraption to cover entirely different

situations unrelated to those arising out of the law of arrest, investigation and trial

in a criminal case. Its misuse is bound to affect the smooth working of the

system. The immediate effects are discernible, firstly that the time of a criminal

court is exhausted to consider matters which are yet to crystallise into mature

criminal actions. Secondly, by taking cognizance of such matters and bringing

them within the court’s criminal jurisdiction, the authority of the investigating

agency is likely to be hampered, because the probable accused manages to secure

a protective shield in the anticipation of his arrest. This paves the way for

interference by the court in the statutory jurisdiction of the police. The police has

statutory power to investigate into a cognizable offence without requiring any

instructions from a judicial authority. The anticipatory bail has a propensity to

207 See. R. L. Anand (ed) Aiyer & Mitter, Law of Bails, 79-81, (1963) 4th ed.

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interfere with police power and authority. It even threatens to dismantle the

utility of the well established rule laid down by the Privy Council in King

Emperor v. Khwaza Nazir Ahmad:208

Just as it is essential that every one accused of a crime should have

free access to a court of justice so that he may be duly acquitted if

found no guilty of the offence with which he is charged, so it is of

the utmost importance that the judiciary should not interfere with

the police in matters which are within their province and into

which the law imposes on them the duty to inquire.209

The Privy Council noted that in India there is a statutory right on the part

of the police to investigate the circumstance of an alleged cognizable crime

without requiring authority from judicial authorities and observed that, it would

be an unfortunate result if it should be held possible to interfere with those

statutory rights by an exercise of the inherent jurisdiction of the court. The

functions of the judiciary and the police are complementary and the combination

of individual liberty with a due observance of law and order is only to be obtained

by leaving each to exercise its own function.210

Since the concept of anticipatory bail is intended to be a fallout of the value

of personal liberty, an added consequence would be to push the co-equal value of

security and stability to the sidelines. The provision is thus legal anomaly in

relation to the established legal concept of bail. It is a provision more readily

available to the affluent but it is definitely prejudicial to the interests of the

administration of the bail process in the administration of criminal justice

system.211

208 L.R. 71 IA. 203 (1943).209 Id. at 204.210 Ibid.211 See further 154th Report of the Law Commission of India on Cr.P.C. (1996).

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In spite of the given reservations about the anticipatory bail, there exists

another stream of thought, according to which it can be safely observed that the

anticipatory bail mechanism is a necessity. Without it numerous persons may be

made to suffer in custody just on account of some suspicion or a false charge.

The experience of courts in evolving useful precedents in matters of anticipatory

bail must not be undervalued.

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