RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2017-2018
Final draft of:
Code of criminal procedure
ANTICIPATORY BAIL

Submitted to:- Submitted by:-

Dr. Prem Kumar Gautam Ayushi Verma
Asst.professor Section -A
Rmlnlu Enrollment no.-37
Semester V

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ACKNOWLEDGMENT:

I would like to express my heartfelt gratitude to my teacher and

mentor Dr. Prem Kumar Gautam (assistant professor), a special
thanks to the Vice Chancellor of Dr. Ram Manohar Lohiya
National Law University, Mr. Gurdeep Singh for providing me
with this opportunity. I also greatly acknowledge the help and
guidance provided to me by Prof. C.M. Jariwala (Dean
Academics).
Thanks and appreciation to my family members for their
constant support, to the library staff and other members of this
institution and lastly to my friends for their help.

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TABLE OF CONTENTS:

1- Introduction
2- Meaning
3- Object
4- Condition precedent for making application
5- Bail and Anticipatory bail distinction
6- Forum
7- Considerations
8- Notice to public prosecutor
9- Blanket Order
10-Cancellation of anticipatory bail
11-Conclusion
12-Bibliography

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INTRODUCTION

“There can be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away from the course of
justice, any more than there can be a presumptions that the former are more likely to
commit a crime and the later are more likely to commit it”. “Lord Russell said “It
was the duty of magistrate to admit accused person to bail, whenever practicable, unless
strong grounds for supposing that such person would not appear to take their trial.”.”It
was not the poorer class who did not appear, for, their circumstances were such as to tie
them to the place where they carried their work” .”They had not the golden wings with
which they fly from justice”.” Section 438 of Code of Criminal Procedure 1973,
makes provision enabling the superior courts to grant anticipatory bail i.e. a direction to
release a person on bail issued even before the person is arrested.”. “The Law
Commission considered the need for such a provision and observed:

“The necessity for granting anticipatory bail arises mainly because

sometimes influential person try to implicate their rivals in false causes 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.”

MEANING:

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“The word “anticipatory bail” is not found in Section 438 or 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 to make an order that in 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 bails” becomes operative”. “It has also been held that
anticipatory bail cannot be granted to a person to do something which is
likely to be interpreted as commission of a crime even if the offender
intended it as something in exercise of his rights”. “The expression
“anticipatory bail” is convenient mode of conveying that it is possible to
apply for bail in anticipation of arrest”. “The Section, however, makes no
distinction whether the arrest is apprehended at the hands of the police or at
the instance of the magistrate.” “The issuance of warrant by the Magistrate
against a person justifiably gives rise to such an apprehension and well
entitles a person to make a prayer for anticipatory.” “1Issuance of summon
for appearance also entitles an accused to apply for anticipatory bail.”
“2Section 438 empowers the High Court and the Court of Session to grant
anticipatory bail i.e. a direction to release a person on bail issued even before
the person is arrested.”

OBJECT:

1
Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)
2
P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).

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 “Under the old Code of 1898, there was a conflict of judicial opinion
about the power of court to grant anticipatory bail”. “Some High Courts
were of the view that the Court could grant such bail but the majority view
was that there was no such power in the Court.” “The law commission,
therefore, in its Forty-first Report recommended introduction of a provision
to grant “anticipatory bail” and stated “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 to first to submit to custody, remain in prison
for some days and then apply for bails.”

“Commenting upon the provision, the Law Commission, in its Forty-

eighth Report observed “We agree that this would be a useful addition,
though we must add that it is only in very exceptional cases that such a
power should be exercised.”

Condition Precedent For Making Application:

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“Before an application may be moved under this section”-

(1) “There must exist reasonable ground for the applicant to believe that he
may be arrested”,

(2) “Secondly, there must be accusation of a non-bailable offence against

him”. “The use of expression “reason to believe” shows that belief that the
applicant may be so arrested must be founded on reasonable ground”. “Mere
‘fear’ is not belief, for which reason it is not enough for the applicant to
show that he has some short of a vague apprehension that someone is going
to make an accusation against him, in pursuance of which he may be
arrested.” “The grounds on which the belief of the applicant is based that he
may be arrested for non-bailable offences must be capable of being
examined by the court objectively”. “Vague and general allegations are not
enough.”

“It was held in Joginder alias Jindi v. State of Haryana, that a petition for
anticipatory bail under Section 438 Cr.P.C. in relation to bailable offence is
misconceived as Section 438 of Cr.P.C. related to non-bailable offences”. “It
was further observed that use of expression “reason to believe” in Section
438 shows that the apprehension must be founded on reasonable grounds
and grounds must be capable of being examined. “ It requires the mere fear
of being arrested is not sufficient a sufficient ground.” “It was also held that
a blanket order that applicant shall be released on bail whenever he is
arrested for whichever offence whatsoever cannot be passed.” “It was also
pointed that direction under Section 438 is to be issued at pre-arrest stage but
it becomes operative only after arrest”. “The Court cannot restrain arrest. An
interim order restraining arrest if passed while dealing with application
under Section 438 would amount to interference in investigation and
therefore such an order cannot be passed under Section 438”. “According to
sub-section (3) of this section if a person, who has been granted anticipatory,
is arrested without by an officer in charge of a police station and he is
prepared, either at the time of arrest or at any time while in the custody of
such officer, to give bail, he shall be released on bail.”

MALIMATH COMMITTEE REPORT

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“Malimath committee has observed in its report that the provision as to
anticipatory bail has been misused by rich and influential people.” “The
committee however opined to retain the provisions subject to two
conditions”:

1- “Public prosecutor should be heard by the court before granting an

application for anticipatory bail and

2- Petition for anticipatory Bail should be heard only by the court of

competent jurisdiction”.

“It may be stated that section 438 (1), as amended by the Code of Criminal
Procedure (Amendment) Act, 2005 now provides for hearing of Public
Prosecutor before granting an application for anticipatory bail”.

Ambit and Scope:

“Section 438 empowers a High Court and a Court of Sessions to grant
anticipatory bail”. “It is not as if bail is presently granted by the Court in
anticipation of arrest”. “But it means that in the event of arrest, a person
shall be enlarged on bail”. “This power is extraordinary in character and it is
only in exceptional cases where it appears that a person might falsely
implicated, or a frivolous case might be launched against him, or “ 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” that such
power can properly be exercised”. “This power being rather unusual in
nature, is entrusted only to the higher echelons of judicial service, namely a
Court of Session and a High Court”. “It is a power exercisable in case of an
anticipated accusation of non bailable offence and there is no limitation as to
the category of non bailable offence in respect of which the power can be
exercised by the appropriate court3”.

Bail and Anticipatory Bail Distinction:

3
Balachand Jain v. State of MP, AIR 1977 SC 366.

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“The distinction between an ordinary bail and an anticipatory bail is that
whereas the former is available and granted after arrest, and therefore, means
release of a person from the custody , the latter is available and granted in
anticipation of arrest and is therefore is active at the very moment of arrest”.
“Again, there is no warrant for reading into Section 438 anything to limit the
discretion of the court by invoking the considerations mentioned in Section
437(1)”. “The discretion has to exercise judicially by a High Court or Court
of Session considering the facts and circumstances of each case”.

Considerations:

“As seen above, relevant considerations governing the discretion of the court
in granting anticipatory bail are materially different from granting bail to a
person who is arrested in the course of investigation or a person who is
convicted and his appeal is pending”. “Anticipatory bail to some extent
extrudes in the sphere of investigation of crime and the court, therefore,
must be cautious and circumspect in exercising such power”. “When a
person is accused of serious offence, such as murder, exceptional and
compelling circumstances must be made out for granting bail”.

Forum:
“Section 438 confers concurrent jurisdiction of granting anticipatory bail on
High Court and Court of Session”. “The power being unusual in nature is
entrusted only to the echelons of judicial service”. “Some High Courts have
taken the view that ordinarily, a Court of Sessions must be first moved by an
applicant”. “It is, however, submitted that when concurrent power is
conferred on the High Court as well as on the Court of Session, no such
restriction can be read in Section 438”. “Again, some High Courts have held
that after the Court of Sessions rejects an application, an applicant cannot
move the High Court for same relief unless circumstances have changed”.
“It is submitted that this view is erroneous”.

“ In Chandra Erappa v. State, the High Court of Karnatka rightly

observed:

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“Of course, there can be no doubt as that in the hierarchy, Court of Session is
subordinate to the High Court; a party who makes an application under
Section 438 of the code before the Sessions Court could approach the High
Court, if his application had been rejected by the Court of Session, but not
vice versa”. “In other words, if the party chooses to file an application under
Section 438 of the Code before the High Court and it is rejected, he cannot
thereafter approach the court of Session under the same provision and on the
same grounds.”

Notice to Public Prosecutor:

“There is no provision in Section 438 for issuing notice to public prosecutor
and hearing by the court before granting anticipatory bail”. “However as
held by the Supreme court in Gur Baksh Singh v. State of Punjab , a
notice should be issued to the Public Prosecutor or the government advocate
before passing final order granting anticipatory bail”. “Therefore if there are
circumstances justifying ex parte interim order, the court may pass final
order after hearing both sides”.

“It may, however may be stated that sub-section (1A) of section 438 as
amended by the Code of Criminal Procedure (Amendment) Act, 2005, now
expressly provides that before finally deciding an application for
anticipatory bail, the court will hear the Public Prosecutor”.

Conditions:

“The high court and the court of sessions to which the application for
anticipatory bail is made can impose such conditions as the case may
warrant”. “The conditions mentioned in Section 438(2) are merely
illustrative and not exhaustive.” “The court while granting anticipatory bail
must remember that the investigation has not yet been completed and,
therefore, it is the duty of the court to ensure that the investigation should
not be hampered or intervened with in any manner”. “The court however,
cannot impose a condition other than warranted by law”. “Thus, no direction
can be issued to effect that the applicant, if arrested should be released on
bail provided he produces the alleged stolen property before the

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investigating officer”. “Such order can be set aside by the High Court in
revision or by exercising inherent powers”.

Duration:
“An order of anticipatory bail passed under Section 438(1) need not to be
limited in the point of time”. “The Court may, however, limit the operation
of the order and direct the applicant to obtain an order under Section 437 or
Section 439 of the code within that period”. “An order of anticipatory bail
does not ensure till the end of trial, but must be for a limited duration till the
trial courts has necessary material before it to pass such orders as it thinks
fit”. “Grant of unconditional blanket protection is untenable and liable to be
set aside”.

Procedure:
“Section 438(2) is “really a machinery provision” for working out an order
passed under Section 438(1)”. “It envisages a situation where the court
decides to proceed against the accused who has been granted anticipatory
bail”. “All subsequent steps must be in conformity with the order issued by
the Court under Section 438(1)”.

BLANKET ORDER:

“A blanket order of anticipatory bail is 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”. “Such a blanket order of anticipatory bail should not
generally be granted”. “Since the section requires the applicant to show that
he has “reason to believe” that he may be arrested, such belief must be
formed only if there is something tangible to go by on the basis of which it
can be said that the applicant’s apprehension is genuine”. “Normally,
therefore, a direction should not be issued under Section 438(1) to the effect
that the applicant should be released on bail “whenever arrested for
whichever offence whatsoever.” “A blanket order of anticipatory bail is
bound to cause serious interference with both the right and the duty of the

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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 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 will be effective”.

Rules for exercising discretion:

“In Guru Baksh Singh v. State, the Full bench of Punjab and Haryana High
Court laid down certain principles as to when anticipatory bail should be
granted under Section 438 of the Code”. “Reversing the decision of the High
Court, the Supreme Court laid that Court has to decide the cases coming
before it after considering the facts and circumstances without laying down a
cast iron rule or adopting straight jacket formula”. “The court must be left
free to grant or refuse bail by exercising discretion judicially in the light of
facts and situations placed before it”.

Successive Application:
“A second application after rejection of the first one under Section 438 is
maintainable if there are additional facts, further developments and/or
different considerations”.

Cancellation of Anticipatory Bail:

“Neither Section 438 nor any other section in the Code makes any clear
provision as to whether the order granting anticipatory bail can be cancelled
even before the regular bail is actually granted”. “However it has been held
that when Section 438 permits the making of an order and the order is made
for granting anticipatory bail, it is implicit that the court making such an
order is entitled upon appropriate consideration to cancel or recall the same”.

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“Thus, an order of anticipatory bail granted by Court of Session can be
recalled or cancelled by that Court or by the High Court”. “But an order
passed by the High Court cannot be cancelled by the Court of Session”.

CONCLUSIONS:

“It is submitted that the following observations of Chandrachud CJ in

Gurba Singh v. State lay down correct law regarding exercise of power to
grant anticipatory bail under Section 438 of the code, therefore are worth
quoting”:

“It cannot be laid down as an inexorable rule that anticipatory bail cannot
be granted unless the proposed accusation appears to be actuated mala fides;
and equally, that anticipatory bail must be granted if there is no fear that the
applicant will abscond”. “There are several others 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
the making of charges, a reasonable possibility of the applicant’s presence
not being secured at the trial, a reasonable apprehension that the witness will
be tampered with and “ the larger 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.”

“Thus it can be said that there may be situations where arrest and
detention may be unjustified and these powers are sometimes misused”.
“Therefore, a duty is cast on the court in such situations to examine the facts
carefully and to ensure that no prejudice is caused to the investigation”. “It is
delicate balance whereby the liberty of the citizen and the operation of the
criminal justice system have both to be equally safeguarded”. “Where it is
pointed out that the action is mala fide or tainted the courts are required to
do justice by preventing harassment and unjustified detention”. “The court
has to keep in mind while deciding an application for anticipatory bail the
nature and seriousness of the proposed charges and the larger interests of the
public or the state”.

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BIBLIOGRAPHY:

file:///C:/Users/user/Downloads/72272490-Anticipatory-Bail-In-
India.pdf

https://en.wikipedia.org/wiki/Anticipatory_bail

https://www.lawctopus.com/academike/anticipatory-bail-india-critical-
analysis/

http://www.shareyouressays.com/119371/anticipatory-bail-section-438-
of-crpc-explained

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