The Indian Constitution envisages the right to life and liberty for all. However, in the case of an arrest such liberty gets endangered. One such remedy in case of an arrest is bail. Bail sets an accused person free on promise to attend the trial and undergo punishment if found guilty.

We will dwell into the provision of Anticipatory Bail in detail. As the name suggests, Anticipatory bail is granted to a person before arrest has even taken place. An application for anticipatory bail can be made under section 438 of the Code of Criminal Procedure if the applicant has a rightful fear of arrest in cases of cognizable offence. 

However, section 438 of Cr.P.C. does  not use the term anticipatory bail in text or in its marginal notes. Anticipatory bail is a misnomer as section 438 states that in the event of an arrest, the person shall be released on bail. As held in the case of Balchand jain v. State of MP 1977 AIR 366, where in a dispute arose between Section 438 and rule 184 of the Code of Criminal Procedure, 1973, it was held by Bhagwati, J.

An application under s. 438 is an application on  an apprehension of arrest. On such an application, the  direction that may be given under s. 438 is that in the event  of his  arrest the applicant shall be released on bail. Rule 184 operates at a subsequent stage when a person is  accused  or  convicted  of contravention of any rule  or   order  made under  the Rules and is in custody.  It is only the  release of such a person on bail that is conditionally prohibited by r. 184…Section 438 applies only to non-bailable  offences. Anticipatory   bail being an extraordinary remedy  available in  special  cases,  this power has been  conferred  on the  higher echelons of judicial service, namely, the  Court  of Sessions  or the High Court.  What the section contemplates  is  not anticipatory bail but merely an order  releasing  an accused on bail in the event of his arrest. There can be  no  question  of  bail  unless a person is under  detention  or custody. The object of s. 438 is that the moment a person is arrested,  if  he  had already obtained an  order  from the Sessions  Judge or the High Court, he would be  released             immediately without having to undergo the rigours  of jail even for a few days.”

Anticipatory bail a.k.a pre-arrest bail is an extraordinary remedy in criminal jurisdiction.

It is provided as a diversion of the usual course of law i.e. arrest in cognizable cases. It is provided as a  protection to the innocent being hounded on trumped up charges through abuse of process of law. Therefore, a person seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide.

In the case of Hidayat Ullah Khan v. Crown, 1948 SCC OnLine Lah 20 wherein it was held that, anticipatory bail is granted to protect innocent beings from abuse of process of law, therefore a petitioner who sought anticipatory bail should have been able to demonstrate that intended arrest was with malafide intentions or abuse of process of law, wherein Court must not hesitate to rescue innocent.

It is not necessary that the offence in respect of which anticipatory bail has been asked for must have been registered. All that Section 438 contemplates is that the person applying has reasonable belief that he may be arrested on accusation of having committed a non-bailable  offence.The power under Section 438 is of an extraordinary character and must be exercised sparingly in exceptional cases only.

Parameters to be considered while granting bail

It has been reiterated again and again by the court that in the instance of granting anticipatory bail, the court exercise its power based on a variety of circumstances and such circumstances have a cumulative effect. There appears to be no straight jacket formula which holds universal validity while considering the grant of bail. In the case of Siddharam Satlingappa Mhetre v. State Of Maharashtra, the Apex court observed the following parameters that can be taken into consideration while granting bail :

“i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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; iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. 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 case is a matter of common knowledge and concern;

viii. 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;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. 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.”

However, it was also held by the court that the above mentioned list is not exhaustive rather an illustrative list.

In the case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273  in order to ensure that the accused are not arrested unnecessarily and that the police officers view such detention in a serious light, the following guidelines were issued by the Hon’ble Supreme Court

(a) Police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under parameters flowing from Section 41 CrPC (the judgment lays down the parameters).

(b) Police officers shall fill the checklist (containing specified sub-clauses under Section 41(1)(b)(ii) CrPC) and furnish the reasons and material necessitating the arrest.

(c) The Magistrate will authorise detention only after recording its satisfaction on the report furnished by the police officers.

(d) If the police officers fail to comply with the directions, they will be liable for departmental action as well as punishment for contempt of Court.

(e) Failure of the Judicial Magistrate to comply with the directions will render him liable for departmental action by the appropriate High Court.

Social Action Forum for Manav Adhilkar v. Union of India, the three-judge bench of the Supreme Court headed by Chief Justice Dipak Misra  made the following notable observations in the case regarding bail:

“the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC.”

Uttrakhand is the only state where Anticipatory Bail provisions are not applicable currently. Uttar Pradesh has passed the Bill to re-introduce the provisions of Anticipatory Bail and circular with respect to the application requirement under CrPC 438 has been circulated by Allahabad High Court on 01.07.2019, thereby paving the way for Anticipatory Bail provisions to be made applicable in UP after gap of nearly 33 years. 

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