LAW OF CRIMES PAPER II:

CODE OF CRIMINAL PROCEDURE-I

I
st
INTERNAL ASSIGNMENT


ANTICPATORY BAIL





Submitted by-
Akanksha Dutta
PRN: 12010123312
IIIrd Year Div. D
B.A. L.L.B.



INTRODUCTION
The law lexicon defines bail as the security for the appearance of the accused person on
which he is released pending trial or investigation
1
. Bail is granted during the pendency of
the trial or an appeal. Before bail is granted to the accused, a surety gives a guarantee to the
Court that the accused will appear in the Court as and when required. A sum of money is to
be deposited to ensure his appearance before the Court, which otherwise stands forfeit. An
application for bail aims to "procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself
to the jurisdiction and judgment of the court."
2

Under the Criminal Procedure Code, 1973 (Cr.P.C.), there is no definition of bail, but the
terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as:
"Bailable offence means an offence which is shown as bailable in the First Schedule or which
is made bailable by any other law for the time being enforce, and non-bailable offence means
any other offence". Bail is a right that can be availed by accused of bailable offences, but for
persons accused of non-bailable offences, they have to apply to a competent authority to
procure bail on merit. Sections 436 to 450 of the Cr.P.C. set out the provisions for the grant
of bail and bonds in criminal cases. The amount of security that is to be paid by the accused
to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the
court to put a monetary cap on the bond. Under the Indian legal system, there exists a
presumption of innocence until guilt is proven beyond reasonable doubt. A bail hearing is not
a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore
granting of bail is the norm except in cases where specific grounds are made out based on
which the bail can be refused. If there are reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life then the person shall not
be granted bail.





1
RAMANTH IYER, Law Lexicon, (3rd ed,2012)
2
Black's Law Dictionary, 177 (4th ed.)
The topic of the essay, Anticipatory Bail is yet another of type of bail that accused may apply
for. Anticipatory bail is applied for prior to arrest or detention by an authority, but in
anticipation of the same. It is governed by s. 438 of the Cr.P.C. as amended by the Code of
Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005)
Under it an individual can seek or request to get bail in anticipation or in expectation of being
named or accused of having committed a non-bailable offence by applying to the Sessions
Court or High Court.
EARLIER POSTION
Anticipatory bail is a direction to release a person on bail, issued even before the person is
arrested. Earlier section 438 read as:
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of
having committed a nonbailable 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 shall be released on bail.
(2) When the High Court or the Court of Session makes adirection 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 subsection (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 while 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 issue in the first instance
against that person, he shall issue a bailable warrant in conformity with the direction of the
Court under subsection (1).
Since its conception, the concept of Anticipatory Bail has been under judicial scrutiny. The
landmark judgement on the subject is Gurubaksh Singh Sibbia v. State of Punjab
3
. The
Supreme Court, reversed the Full Bench decision of the Punjab and Haryana High Court in
this case, which had given a restricted interpretation of the scope of Section 438, held that in
the context of Article 21 of the Constitution, any statutory provision (Section 438) concerned
with personal liberty could not be whittled down by reading restrictions and limitations into
it. The SC sought to remove unnecessary restrictions when it came to bail provided under
section 438. The Court also held that the conditions subject to which the bail can be granted
under section 437(1) should not be read into Section 438. Section 438 (1) of the Code lays
down a condition, which has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has reason to believe that he may be arrested for a non-
bailable offence. The use of the expression reason to believe shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds. Thirdly, the filing of a
First Information Report is not a condition precedent to the exercise of the power under S.
438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist
even if an FIR is not yet file. Fourthly, anticipatory bail can be granted even after in FIR is
filed, so long as the applicant has not been arrested. After arrest, the accused must seek his
remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect
of the offence or offenses for which he is arrested
4
:-






3
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
4
Ibid, pg. 589-590
AMENDED PROVSION
The Section had been considered faulty by a number of Law commissions and there were on-
going discussions on its amendment, finally it was amended in 2005 by the Code of Criminal
Procedure (Amendment) Act, 2005 (Act 25 of 2005) tot the effect that
5
:
(i) the power to grant anticipatory bail should be exercised by the Court of Session or the
High Court only after taking into consideration certain factors;
(ii) upon consideration of these factors, the Court will either reject the application or issue an
interim order for the grant of anticipatory bail in the first instance;
(iii) where the Court has rejected the application or has not passed any interim order, it will
be open to the officer-in-charge of a Police Station to arrest the applicant, without warrant, on
the basis of the accusation apprehended in the application for the grant of anticipatory bail;
(iv) where the Court makes an interim order for the grant of interim bail, it will forthwith give
a notice being not less than seven days notice to the Public Prosecutor and the
Superintendent of the Police with a view to give them an opportunity of being heard when the
application is finally heard;
(v) the presence of the applicant seeking anticipatory bail will be obligatory at the time of
final hearing of the application if the Court considers such presence necessary in the interest
of justice on an application made by the Public Prosecutor for such presence.
Again, in the case of Gurubaksh Singh Sibbia v. State of Punjab
6
it was said that the High
Court and the Court of Session must apply their mind with care and circumspection and
determine whether the case for anticipatory bail is made out or not. No blanket order of
anticipatory bail can be passed by any Court.
It can be said that the amended Section merely seeks to formalize certain aspects that are
otherwise being followed in practice without having been formally included in the Section. It
needs to be borne in mind that legislation is a sphere which is seldom perfectly complete.
There may be conditions and practices which escape formal translation into statutory laws but
yet, they continue to influence the conduct of the organs of the State and their subjects. Such

5
LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure, 1973
As Amended By The Code Of Criminal Procedure (Amendment)
Act, 2005 (Anticipatory Bail), (Law Comm. Report 203, Dec 2007)
6
Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
conditions and/or practices may have been initiated in the first instance in individual cases
based on sound reasons, logic and rationale. Even though the amended section 438 expounds
upon the provisions required to be considered while granting anticipatory bail, the Supreme
Court has given guidelines for the same in the year 2009.
In the case of Savitri Agarwal and Others v. State of Maharashtra and Another,
7
a
Constitutional bench of the Supreme Court issued guidelines which the courts had to keep in
mind while they decided upon the granting of anticipatory bail. Though the power conferred
under Section 438 can be described to have extraordinary character, but this does not justify
the presumption that the power must be exercised in only exceptional cases. Nonetheless, the
discretion under the Section has to be exercised with due care and careful understanding of
the case and examine it on its merits.
Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must
be satisfied that the applicant invoking the provision has reason to believe that he is likely to
be arrested for a non-bailable offence and that belief must be founded on reasonable
grounds. Mere fear is not belief, for which reason, it is not enough for the applicant to
show that he has some sort of vague apprehension that an accusation may be made against
him/her that might lead to arrest. The court should be able to objectively examine the grounds
on which the reasonable fear is based. Specific events and facts must be disclosed by the
applicant in order to enable the Court to judge of the reasonableness of his belief, the
existence of which is the sine qua non of the exercise of power conferred by the Section.
The observations made in Balchand Jain v. State of Madhya Pradesh,
8
regarding the nature
of the power conferred by Section 438 and regarding the question whether the conditions
mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on
the point. There is no warrant for reading into Section 438, the conditions subject to which
bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot
be refused in respect of offences like criminal breach of trust for the mere reason that the
punishment provided for is imprisonment for life. Circumstances may broadly justify the
grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in
any case if there is material before it justifying such refusal.

7
Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373
8
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366
No blanket order of bail should be passed and the Court which grants anticipatory bail must
take care to specify the offence or the offences in respect of which alone the order will be
effective. While granting relief under Section 438(1) of the Code, appropriate conditions can
be imposed under Section 438(2) to ensure uninterrupted investigation. One such condition
can even be that in the event of the police making out a case of a likely discovery under
Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in
police custody for facilitating the recovery. Otherwise, such an order can 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.
It has also been observed that an interim bail order can be passed under Section 438 of the
Code without notice to the Public Prosecutor but notice should be issued to the Public
Prosecutor or to the Government advocate forthwith and the question of bail should be re-
examined in the light of respective contentions of the parties. The ad-interim order too must
conform to the requirements of the Section and suitable conditions should be imposed on
the applicant even at that stage.
Though it is not necessary that the operation of an order passed under Section 438(1) of the
Code be limited in point of time but the Court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing of FIR in respect of the matter
covered by the order. The applicant may, in such cases, be directed to obtain an order of bail
under Section 437 or 439 of the Code within a reasonable short period after the filing of the
FIR.
The provision can be used favourably by those who have been falsely accused and have the
knowledge that criminal allegations can be made on them and can approach the court for this
remedy. The law on anticipatory bail is mostly clear cut and devoid of doubts, but in the case
of anticipatory bail, which his mostly discretionary in nature, there cannot be any permanent
principles as decisions are made on case to case basis



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.
9
Normally, very cogent and overwhelming grounds or
circumstances are required to cancel the bail already granted.
10

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 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 he only
criterion for cancelation of such bail.
11

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.
6. Anticipatory bail may be cancelled under section 439(2) of Code of Criminal Procedure if
the accused is found to be tampering with prosecution evidence.
12
Very cogent and
overwhelming circumstances are necessary for an order seeking cancelation of bail.
13
The

9
Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
10
Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
11
A. K. Murumu v. Prasenjit Choudury, 199 Cr.LJ 3460
12
Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
13
Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
cancelation 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.
14

CONCLUSION
As mentioned previously, anticipatory bail is a provision in favour of the liberty and freedom
of people accused of crimes. While the courts have given detailed guidelines on application
of the provision, but the same is not applied strictly in practise.
Besides the above issue, the 203
rd
Law Commission Report too suggested certain
recommendations one of which being that an explanation should be inserted clarifying that a
final order on an application seeking direction under the section shall not be construed as an
interlocutory order for the purposes of the Code
In State of Rajasthan v. Bal Chand
15
, Justice Krishna Iyer observed: The basic rule may
perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of
fleeing from justice or thwarting the course of justice or creating other troubles in the shape
of repeating offences or intimidating witnesses and the like by the petitioner who seeks
enlargement on bail from Court. The practical problem of anticipatory bail is that it is often
observed especially in the case of influential accused that despite conditions that prohibit any
intimidation and harassment of the victim the accused or his/her representatives attempt to do
the same.
Besides that, any power that is based on discretion will always have the suspicion of an
element of ambiguity and the chance of arbitrariness. The factors for consideration in dealing
with anticipatory bail applications as are now mentioned in the new Section are only
illustrative in nature and the same, along with other relevant factors are indeed being taken
into consideration while making final orders on such applications in spite of the fact that
these have not been expressly incorporated in the pre-amended Section. Just as in the case of
discretion when it comes to the choice between life imprisonment and the death penalty, the
decision emanating from such an exercise of discretionary power shall always be
circumspect.
.

14
Vishwanath Tiwari v. State, 1988 Cr.L.J. 333 (Pat)
15
State of Rajasthan v. Bal Chand, AIR 1977 SC 2447
REFERNCES
Case Laws
1. State of Rajasthan v. Bal Chand, AIR 1977 SC 2447
2. Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373
3. Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366
4. Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
5. Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
6. Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
7. A. K. Murumu v. Prasenjit Choudury, 199 Cr.LJ 3460
8. Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
9. Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
Legislations and Bills
1. The Code of Criminal Procedure, 1973
2. The Code Of Criminal Procedure (Amendment) Act, 2005

Books, Reports
1. RAMANTH IYER, Law Lexicon, (3rd ed,2012)
2. Black's Law Dictionary, 177 (4th ed.)
3. R.V. KELKAR, Criminal Procedure,(5
th
ed. 2008)
4. RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, (19
th
ed. 2013)
5. LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure,
1973, As Amended By The Code Of Criminal Procedure (Amendment) Act, 2005
(Anticipatory Bail), (Law Comm. Report 203, Dec 2007)