• Anticipatory Bail- Extent & Scope

  • Extent & Scope of the law concerning “Anticipatory Bail”

    The expression `anticipatory bail' has not been defined in the Code. But as observed in the Case, titled as, Balchand Jain Vs. State of M.P., an `anticipatory bail' means `bail in anticipation of arrest'. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. 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 bail becomes operative.

    The power of granting `anticipatory bail' is somewhat extraordinary in character. The power being rather unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and the High Court.  

    The Legislature has conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail since it felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the matter of grant of relief in the nature of anticipatory bail.

    The Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

    1. Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
    2. 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 some one 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 a non-bailable offence, must be capable of being examined by the Court objectively. 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.
    3. The observations made in Balchand Jain's case, 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.
    4. 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) so as to ensure an 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.
    5. The filing of First Information Report (FIR) is not a condition precedent to the exercise of 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.
    6. An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
    7. The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
    8. 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.
    9. 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.

    As held by the Hon’ble Supreme Court of India and the High Courts, all over India, The society has a vital stake in both of the interests, namely, personal liberty of an individual and the investigational power of the police. The  Court's  task  is  how  best  to balance these  interests  while       determining  the  scope  of section 438 of the Code of Criminal Procedure, 1973. 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. Mere  'fear' is not  'belief',  for which reason it is not enough for the applicant to show that he has some sort  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 a non-bailable offence,  must be  capable of being examined by the court objectively,  because it is then alone that the court can determine  whether the applicant has  reason to believe that he may be so  arrested. 

    If  an application  for anticipatory  bail is made to the High Court or the Court of Session it must apply its own mind to  the question and decide whether a case has been made  out for granting such relief. It cannot leave the question for  the decision of the Magistrate concerned under Section 437  of the  Code, as  and when  an occasion arises. Such a course will defeat the very object of Section 438.

    The rationale  of  a direction under   Section  438(1)  is the  belief  of the applicant founded  on reasonable  grounds  that he  may  be arrested for  a non-bailable  offence. It  is unrealistic to expect the  applicant to  draw up  his application  with the meticulousness of a pleading in a civil case and such is not requirement of the section.  But 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. 

    A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the 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 the commits,  say, a  murder in the presence of the public. Such an order can  then become a charter of lawlessness and 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. The power should not be exercised in a vacuum. 

    An  order of bail can be passed under section 438(1) of the Code without  notice to the Public  Prosecutor. But notice should  be issued to the public  prosecutor  or  the Government Advocate  forthwith and  the  question  of bail should be  re-examined in the  light of  the  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. 

    The captioned subject is complex by its very nature. We, therefore, always encourage our visitors & Clients to seek an independent legal advice by our empanelled lawyers. In such Cases, our lawyers devise most appropriate legal recourse for our Clients after examining the related provisions of law, i.e. The Indian Penal Code, 1860, The Code Of Criminal Procedure, 1973, The Limitation Act, 1963, The Evidence Act, 1872, Other relevant Acts, Judgments and Citations of the Hon’ble Supreme Court Of India and the High Courts. Even otherwise, the question as to how to apply the laws, judgments and citations is rather more complex, as it involves a thorough examination of substantial laws, procedural laws and Court precedents in a given set of facts and circumstances.

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