“Anticipatory bail” is not defined in the Code of Criminal Procedure,1973, it was not even a part of the earlier 1898 code. The term was first time mentioned by the 41st Law Commission Report,1969 in which a need was felt to include such provision to safeguard an accused who is apprehending or has a reason to believe that he may get arrested for a non-bailable offence.
Further, the need for such provision arose because now and then prominent persons try to accuse their rivals in false cases to disgrace them by getting them held in jail for some days. Also if there are reasonable grounds that a person accused of an offence has fewer chances of absconding or misusing his liberty while he is on bail then it will not be logical to make him first submit to custody, remain in prison for some days, and then apply for bail.
The Parliament considered the recommendation and while enacting the 1973 Act, added the provision of granting bail to a person apprehending arrest under Section 438. The intention of the legislators was not to make anticipatory bail a “blanket protection ” thus, it cannot operate in respect of an offence committed in the future and does not permit the accused to commit further offences and claim relief from arrest.
Further, the provisions of Section 438 cannot be invoked after the accused has been arrested and after arrest, if he is to be released on bail then he must seek remedy under Section 437 or 439 Cr.P.C.
In the case of Bal Chander Jain vs. State of M.P , it was held that “Anticipatory bail” means “bail in anticipation of arrest” and when a competent court grants anticipatory bail, an order of releasing a person at the time of arrest is granted.
In M.P. & Anr. vs. Ram Kishan Balothia and Anr , the Apex Court held that Anticipatory bail was not there as a statutory right before 1973. Therefore, it cannot be considered a fundamental right under Article 21 of the Constitution of India.
This Article broadly interprets the provisions of Anticipatory bail and covers all the important Judgments related to it including the recent landmark Judgment of Sushila Aggarwal vs State of Delhi ; under which very important questions were answered by the Constitutional Bench of the Supreme Court.
Interpretation of Section 438
Section 438 is divided into 6 subsections. Section 438(1) lays down “when any person having a reason to believe that he may get arrested for a non-bailable offence then he can apply for anticipatory bail to the High Court or the Court of session and it is at the discretion of the Court that whether they want to give the bail or not”. Thus, anticipatory bail is not a matter of right of the accused as regular bail in case of bailable offence or the default bail under Section 167(2), Cr.P.C.
In the case of Savitri Agarwal v. State of Maharashtra & Anr the court held that the belief of the applicant seeking anticipatory bail must be founded on reasonable grounds and not just based on mere “fear”.He must have a reason to believe that he is likely to be arrested for a non-bailable offence and should disclose specific events and facts which can help the Court to judge the reasonableness of his belief.
The Parliament in 2005 has introduced amendments in Section 438 in which the Courts are required to be more vigilant while granting any relief under this provision.
