Anticipatory bail (Section 438 of CR.P.C.)

What does it include? Anticipatory bail is a direction to release a person on bail even before the person is arrested i.e. a pre-arrest bail. One can resort to section 438 only upon the existence of a ‘reasonable belief’ that he may be arrested on an ‘accusation of having committed a non-bailable offence’. It is used when there is an order or direction that in the event of arrest, a person shall be released on bail. It is only on arrest that order granting anticipatory bail becomes effective. In this, the apprehension of arrest should not be only at the hands of police but it may be at the instance of the magistrate also. Sec 438(1) confers power to grant anticipatory bail in case of non-bailable offences. So it is immaterial for the purpose of sec 438 that whether the offence is cognizable or non cognizable or whether it is under the Indian Penal Code or any other law.

There is no restriction on granting anticipatory bail in the case of alleged offence punishable with death or life imprisonment. There is no anticipatory bail after the arrest. After the arrest, an accused can seek bail only under section 437 or 439 of the code. When the High Court or Court of Session has not passed any interim order under the section 438 or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant, the applicant on the basis of accusation apprehended in such application. Under sec 438, where the court grants the interim order, it shall forthwith cause a notice being not less than 7 days notice, together the copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application is finally heard by the Court. On an application made to the court by the Public Prosecutor that the presence of the applicant is obligatory at the time of final hearing of the application and final passing of the order, then sec 438 (1-B) provides that the presence of the applicant is obligatory in the interest of justice.

How did this concept evolve? In the old Criminal Procedure Code, 1898 there was no provision for anticipatory bail. It was inserted after a need was felt for it, which was spelt out by the Law Commission in its 41st Report. The necessity for granting anticipatory bail was arose because sometimes influential people used to implicate their rivals in false cases for the purpose of disgracing them. The Law Commission further said that in order to ensure that this provision is not misused the final order shall be made after the notice to the public prosecutor. The initial order should be the interim one. The judge should record reasons in writing for his direction and shall ensure that both the parties have been heard. (Principles of Natural Justice)

Which court can entertain it? Section 438 (1) contemplates two forums for moving the application for anticipatory bail, namely, the High Court and the Court of Session. Both the jurisdictions are concurrent and it is left for the person to choose either of the two. The provision does not create a bar on any person to apply to the Court of Session first before coming to the High Court to seek redress. But, normally a person approaches the Session Court first and then goes to the High Court, unless there is a special case for straightway approaching the High Court. High Court or Session Court having the jurisdiction over the place, where the applicant apprehends his arrest, has jurisdiction to entertain the application for anticipatory bail, even though, the FIR might have been registered at a place within the jurisdiction of another High Court or Session Court.

When can this application be not allowed? The provision of granting anticipatory bail are not applicable to the offences under Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act,1989 as per sec.18 of the Act. This provision is not even applicable to the state of Uttar Pradesh because Sec.9 of the U.P. Criminal Procedure Code (Amendment) Act, 1976, has omitted Sec. 438. Anticipatory bail cannot be granted to those persons who have been declared an absconder under sec.82 of the code. State of MP v. Pradeep Sharma, (2014) 2 SCC 171 The persons accused of economic offence and atrocious crime are not given the anticipatory bail by the Courts. The Supreme Court has also ruled that High Courts have no power to grant anticipatory bail for economic crimes. The Supreme Court has held that the anticipatory bails should not be granted to persons involved in dowry deaths. Samunder Singh v. State Of Rajastahan (1987) 1 SCC 466

TILL WHAT TIME DOES THIS BAIL STAY EFFECTIVE? Section 438 does not specifically mention as up to what stage the order of the anticipatory bail shall be effective. As soon as, the person is free on bail on the directions of anticipatory bail order, it would be deemed by implication as if the bail was granted under section 437(1). Consequently, the bail shall be effective till the conclusion of the trial unless the court taking action under section 437 (5) or under Section 439 (2) cancels it. Filing of challan in the court is by itself no ground to cancel the bail.

Celebrated case laws Gurubaksh Singh Sibbia v. state of Punjab (AIR 1980 SC 1632)- The filing of an FIR is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. Anticipatory bail can be granted even after the FIR is filed so long as the applicant has not be arrested. (And innumerable guidelines were passed by the Supreme Court in this case.) Hema Mishra v. state of U.P. (2014 4 SCC 453)- Supreme Court observed that the power under Art. 226 is not to be exercised liberally so as to convert it into sec. 438 of Cr.p.c. proceedings in an appeal seeking the direction in the nature of Mandamus to defer the arrest of the petitioner until collection of the credible evidence sufficient for filing the charge sheet. It held that sec.438 Cr.P.C. for anticipatory bail in U.P. cannot be resorted as a back door entry via Article 226.

Sudhir v. state of Maharashtra & Anr Sudhir v. state of Maharashtra & Anr. (SC 2015)- The question before the Hon’ble Supreme Court was that whether the High Court had erred in law in cancelling the anticipatory bail granted to the appellants. The Supreme Court considering the conduct of the appellants and the fact that the investigation was held up as the custodial interrogation of the appellants could not be done due to the anticipatory bail, opined that the High Court had rightly cancelled the anticipatory bail. Babe Singh v. State of U.P (1978 1 SCC 579) – The Supreme Court held that successive bail applications by an accused are not barred as principle of res judicata does not apply in this field. Balchand Jain v. State of M.P. (1976 4 SCC 572)- The Supreme court has said that section 438 does not require a notice be given to the Public Prosecutor before the application for anticipatory bail is considered by the court and legally it is possible to pass an ex-parte order of anticipatory bail. But ordinarily an order of anticipatory bail should not be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application. State of Maharashtra v. Vishwas Shripati Patil (1978 Cri LJ 1403)- The court while granting anticipatory bail should record reasons for doing so.

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