Anticipatory Bail - Grounds and Conditions.
Also covers Factors and parameters to be considered for grant of Anticipatory Bail.
Topic #005
What is Anticipatory Bail?
In Cr.P.C., “Anticipatory bail” has not been defined.
In the case of Balchand Jain v. State of M.P.1, the Hon’ble Supreme Court has observed that “anticipatory bail” means “bail in anticipation of arrest”. In the same case, the Hon’ble Supreme Court has further observed that the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest.
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 favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Sec 438 of Cr.P.C.
In the case of Gurbaksh Singh Sibbia and others v. State of Punjab2, a Constitution Bench of the Hon’ble Supreme Court has observed and held that the facility which Section 438, Cr. P.C. affords is generally referred to as “Anticipatory Bail”, an expression which was used by the Law Commission in its 41st Report. Neither Section 438 nor its marginal note so describes it but, the expression “Anticipatory Bail” is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.
Which court can grant?
Power to grant “Anticipatory Bail” vests only in the High Courts or the Courts of Sessions. It is for the concerned court to impose conditions including the limited period of “Anticipatory Bail”, depends upon the stages at which the application for anticipatory bail is moved.
When can you apply?
“Anticipatory bail” can be applied at different stages.
FIR: In a case where no FIR is lodged and a person is apprehending his arrest in case the FIR is lodged, in that case, he can apply for “Anticipatory Bail” and after notice to the Public Prosecutor the Court can grant “Anticipatory Bail”
Pre-Investigation Stage: It is submitted that even in a case where the FIR is lodged but the investigation has not yet begun, i.e., pre-investigation stage, the “Anticipatory Bail” can be applied.
Post-Investigation Stage: “Anticipatory bail” can also be applied at the post-investigation stage.
Factors and parameters to be considered
In the case Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors3, the Honourable Supreme Court laid down the following factors and parameters that can be taken into consideration while dealing with the anticipatory bail:
The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
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;
The possibility of the applicant to flee from justice;
The possibility of the accused's likelihood to repeat similar or the other offences.
Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
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, fair, and full investigation and there should be prevention of harassment, humiliation, and unjustified detention of the accused;
The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
Further Aspects
In the case Sushila Aggarwal and others VS State (Delhi)4 - the Honourable Supreme Court clarified that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:
Concrete Facts: When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence.
Apprehension Reasons: The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story.
Issue notice to Public Prosecutor: It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
Not blanket order: An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence
Limit or Restrict: An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail.
Violation & Arrest: It is open to the police or the investigating agency to move the same court concerned, which granted anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, noncooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.
Correctness: The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances.
Conditions imposed by Court
While granting Anticipatory Bail, normally following conditions are imposed by the court/courts which as such are in consonance with the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and Section 438(2) read with Section 437(3) of the Cr.P.C:
The applicant namely________________ shall furnish personal bond of Rs.______________ with his recent self- attested photograph and surety of the like amount on the following conditions at the satisfaction of the Inestigating Officer;
The applicant shall remain present before the concerned police station on ____________ between ____________;
The applicant shall cooperate with the investigation and make himself available for interrogation whenever required;
The applicant shall not directly or indirectly make any inducement, threat, or promise to any witnesses acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
The applicant shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police
The applicant shall not leave the territory of ____________, without prior permission of the court, till the trial is over;
The applicant shall mark his presence before concerned police station on ______________ between ____________ for the period of six months, from the date of this order;
The applicant shall maintain law and order;
The applicant shall, at the time of execution of the Bond, furnish his address and mobile number to the Investigating Officer, and the Court concerned, and shall not change the residence till the final disposal of the case;
The applicant shall surrender his passport, if any, before the Investigating Officer within a week and, if he does not possess any passport, he shall file an affidavit to that effect before the Investigating officer;
The applicant shall regularly remain present during the trial, and cooperate the Honourable Court to complete the trial for the above offences.
If the breach of any of the above conditions is committed, the order of anticipatory bail would be canceled. It would be open to the Investigating Officer to file an application for remand, and the concerned Magistrate would decide it on merits, without influenced by the grant of Anticipatory Bail order.
After the grant…
When a competent court grants “Anticipatory Bail”, it makes an order that in the event of arrest, a person shall be released on bail.
When does the order become operative?
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.
Offenses when Anticipatory bail is not allowed
In the case of Sushila Aggarwal (Supra), the Hon’ble Supreme Court has clarified the if there are any special law or statute, which exclude relief under Section 438, they would have to be considered. (See Section 18 of SC/ST Act 1989)
One of the restrictions imposed by Parliament upon the exercise of the power to grant anticipatory bail is by way of positive restrictions i.e. in the case where accused are alleged to have committed offences punishable under Section 376(3) or Section 376-AB or Section 376-DA or Section 376-DB IPC vide Section 438(4) introduced by the Code of Criminal Procedure Amendment Act, 2018.
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(1976) 4 SCC 572
(1980) 2 SCC 565
2011 (1) SCC 694
(2020) 5 SCC 1