Bail-in anticipation of arrest or detention, by and large, is called “Anticipatory Bail”. Provisions of section 438 of code provide for anticipatory bail enables the superior courts, namely Court of Sessions or High Court, to direct release of a person on bail before his arrest – Arun Sharma v. State of Assam.[1]
One common query in Anticipatory Bail is whether there is a time limit of validity of Anticipatory Bail. In Sidharam Satilingappa Mhatre v. State of Maharashtra[2],this position was cleared by Supreme Court that anticipatory bail should not be granted for a limited period and it should continue till the end of the trial. Bhagirathi v. State of Madhya Pradesh[3]also cleared the position that submission of charge sheet does not bar Anticipatory Bail.
The intention of the Legislature is enacting the statutory provisions in section 438 of the code, which applies to non-bailable offences, was to ensure that liberty of the subject is not put in jeopardy on frivolous grounds at the behest of unscrupulous and irresponsible persons who represent prosecution. Another objective of anticipatory bail is also to relieve a person from unnecessary apprehension or disgrace. Every individual whose right to his liberty has been threatened or put in jeopardy has the right to invoke remedy under section 438 of the Code of Criminal Procedure. He will be entitled to the benefit of the presumption of innocence as on the date of making an application for anticipatory bail; he is not convicted for the offence.
Factors for grant of Anticipatory Bail
The court generally weighs factors such as-
- The nature and seriousness of the offence
- The character of the evidence
- Circumstances which are peculiar to the accused
- A reasonable possibility of the presence of the accused not be secured at the time of trial
- Reasonable apprehension of witnesses being tampered with
- The broad interest of the public or the state
In Gurbaksh Singh v. the State of Punjab[4], it was held that an order of bail under section 438 might be granted without notice to the public prosecutor. However, it is prudent to give notice to the opposite party before granting Anticipatory Bail. In Smt. Sheikh Khasim Bi v. The state of A.P 1986 S.C. held that Anticipatory Bail could be granted even if the court has taken cognizance and issued process.
Scope of Anticipatory Bail
Section 438 of Code of Criminal Procedure applies to non bailable offences irrespective of whether it is cognizable or non-cognizable. Any person who is previously convicted cannot be allowed Anticipatory Bail. In K. Rajshekhara Reddy v. State of Andhra Pradesh[5],the Supreme Court held that for anticipatory bail, it is not necessary that a criminal case must be registered. Yet, no application can be entertained on vague suspicion, gossip or wild rumour. It can be granted after an FIR has been lodged but not even arrest. The court is empowered to grant anticipatory bail even after filing of charge sheet and issuing of the warrant. The Hon’ble Supreme Court in Gurubaksh Singh case[6]has laid following propositions regarding anticipatory bail-
- The distinction between an ordinary bail and anticipatory bail is that former being an order of release from the police custody, and the latter being in anticipation of arrest is significant at the very moment of arrest.
- Sessions Courts and the High Courts have vast discretionary powers to grant bail on the facts and circumstances of the case, and the court may specify the offences in respect of which the order is effective.
- The court must apply its mind and decide the question without leaving it to be determined by the magistrate under section 437 (Regular bail) as and when the necessity arises.
- The applicant must show by specific factor and event to convince the court about the apprehension of the arrest.
- The operation of the order must not be limited to a period of time.
- The order of anticipatory bail should be made against an accusation inspired by some ulterior motive.
- Filing of FIR is not a condition precedent but should not be exercised after the arrest.
- An order of Anticipatory Bail does not affect the investigation in any way.
One crucial aspect in Anticipatory Bail is that personal appearance is not necessary for applying section 438(1) Code of Criminal Procedure and accused may appear even through his lawyer.
Anticipatory bail and remand of police custody
The courts should not refuse anticipatory bail merely because the police wanted the accused in police custody for investigation and interrogation. The court ought to assess the need for the police custody to examine it, and it must be balanced against the duty of courts to protect the dignity of the applicant and vigilantly guard the right or liberty without jeopardizing the genuine need as well as the objective of maintenance of law and order.
Important: When the magistrate concerned refuses to remand the accused to police custody, the superior magistrate (CMM or CJM), when he is moved for remanding the accused to police custody, has no power to direct the magistrate incharge of the case to remand the accused to police custody. He can only report the matter to the High court.
Supreme Court had held that when the investigation had progressed, or charge sheet has been filed, the court exercising the powers u/s 438 CrPC cannot grant anticipatory bail to accused till the end of the trial. Still, it must be for a limited period only. It was held in Salaudin Abdul Samad Sheikh v. State of Maharashtra[7]. In granting or refusing of bail, the court must record reasons in its order.
Anticipatory bail in complaint cases
Anticipatory bail may be granted not only in cases instituted on the police report (through FIR) but also in cases instituted through a complaint. In section 204, clause A and B sub-section (1) clearly shows that summon or warrant is issued to only ensure the presence of the accused. Neither filing of charge sheet by police nor issuing of process or a warrant by magistrate put an end to power to grant bail under section 438(1) of C.rP.C. The SC has held in Niranjan Singh v. Prabhar Rajaram[8]that the session judge or the high court is empowered to refuse bail even in a complaint case. However, when the court has issued NBW for production or appearance of the accused in the bailable offence, the magistrate has to release the accused on bail when he appears himself or produced by the police.
Effectiveness of Anticipatory Bail after the filing of a charge sheet
There is nothing in section 438 which bars the limitation of anticipatory bail in regards to validity in time. Hence, it shall remain effective until the conclusion of the trial unless the court cancels it under 437 (5) or section 439 (2) or other legal ground. Still, filling of challan or chargesheet in the court itself shall be no ground to cancel the bail. This was held in Ram Sewak v State of M.P[9]and Anirudh Prasad v. State of Bihar[10].
Important: Delhi High court in P.V Narsimha Rao v. CBI has ruled that while exercising jurisdiction under section 438 Cr.P.C the governing factor is that there must be an apprehension of an arrest to a person accused of non bailable offence. But where charge-sheet has been filed, and NBW is issued, then it should be left to the regular court to deal with the appreciation of evidence.
Cancellation of Anticipatory Bail
The relevant factor for cancellation of bail is whether the affidavit filed by the prosecution makes clear whether the accused are interfering with the course of justice or investigation by tampering with a witness or have violated the conditions imposed on them and abused the liberty given by the court.
Important:
- Prosecution witness turning hostile is not a sufficient ground for cancellation of bail. It must have a direct connection with the conduct of accused and witnesses who turned hostile.
- The court has no power to direct a person to be committed to custody to secure recovery under section 27 of the Indian evidence act.
- Anticipatory bail granted by the High Court can be cancelled only by High Court under section 439(2), and the Magistrate and Sessions Judge has no power to cancel it.
By-
Prateek Som, Advocate
[1] 1986 (2) GLR 206.
[2] SLP (Crl.) No.7615 of 2009.
[3]Criminal Appeal No.96 of 1991.
[4] 1980 AIR 1632.
[5] 1998 (4) ALD 677.
[6] Supra note 4.
[7]1996 SCC (1) 667.
[8]1980 SCR (3) 15.
[9]1979 CriLJ 1485.
[10]Cr.Misc.No. 10949 of 2006.
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