Practical aspects of Anticipatory Bail: The Niceties

What is Anticipatory Bail?

Relevant Provision: Section 438 of Cr.P.C.) What does the word anticipatory bail not mean is to be understood first to understand the whole concept of Anticipatory bail. Anticipatory bail does not mean that bail be granted before arrest but refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. The word 'anticipatory' labeling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested.

Having said that, the fundamental difference between an order for regular bail and one for anticipatory bail is to be understood in a proper perspective. The former is granted only after arrest (and becomes operative subsequently) but the latter is granted (Order) before arrest and hence is operative from the moment of arrest. One also has to understand that regular bail comes into operation once a person is remanded to judicial custody but the anticipatory bail comes into operation immediately on arrest and prior to being remanded to police custody and or judicial custody.

The provision of Anticipatory bail can be invoked if a person is apprehending arrest for commission of a non-bailable offence in which the police are empowered to arrest the person accused of any crime or on suspicion of the commission of a serious offence which requires the custody of the accused to conduct investigation.

Case laws which have elaborated the provisions of the anticipatory bail:

The law as regards anticipatory bail has been simplified in the landmark judgment of Gurbaksh Singh Sibba vs. The State of Punjab AIR 1960 SC 1632 and further the same has been reiterated now in 2010 in the judgment of Siddharam Mhetre vs. State of Maharashtra 2011(1) BomC.R. (Cri) 293.

These two case laws are a authority on the law of anticipatory bail. Another landmark judgment on the point of anticipatory bail is that of Jagganath vs. State of Maharashtra 1981 Cri.L.J. 1808.

Further there are also authorities which point out as to when anticipatory bail can be granted and what are the various aspects which have to be taken into consideration at the time of deciding anticipatory bail applications.

What are the pre-requisites to be taken into consideration before applying for Anticipatory Bail?

i. Apprehension should be shown for obtaining a anticipatory bail and

ii. The apprehension should be that the offence that could be registered against the applicant is of a non bailable offence (the offences which are bailable and non bailable are described in the First Schedule of the Criminal Procedure Code) and

iii. Apprehension that the police might register a non bailable offence

Whether there is a necessity of registration of First Information Report?

There is no necessity of an FIR being registered against the person applying for anticipatory bail. It can be granted by the Court when a person apprehends arrest for a non-bailable offence (refer to the First Schedule for the list of offences described as bailable and non bailable).

What is Interim Anticipatory Bail?

Let us assume that the applicant on an apprehension wishes to obtain anticipatory bail and thereby files the same before the Court of Sessions. On filing of the anticipatory bail, the Public Prosecutor now requires time to file his say and wants to consult with the police machinery on the point as to whether custody is required or not. If the Public prosecutor required time to file his say and as well say of the investigating authority then in such circumstances there is a possibility that the police may use this time period to arrest the applicant. In such circumstances, the whole objective of the anticipatory bail would be frustrated and hence the applicant can apply for interim anticipatory bail and the Courts generally grant interim anticipatory bail.

The same has been so laid down in the famous case of Menino Lopes vs. State of Goa and State of Maharashtra vs. KSS Rajput. When would the Court Grant such an anticipatory bail?

As per the facts of each and every case the circumstances would differ but the general considerations would be

i) the Court should be convinced as to how there are chances that the applicant may be falsely implicated in a particular crime

ii) even if the applicant has a role to play it should be highlighted that the custodial interrogation is not required

iii) in case of documentary evidence - how the documents are in the possession of the prosecution and how custody of the applicant would not serve any ends of the police

iv) how there is no need of recovery of any document/weapon/incriminating article from the possession of the applicant

v) how it would affect his/her liberty and would cause embarrassment in the society

vi) how the applicant has roots in the society vii) that the applicant is a law abiding citizen

viii) that there is no past criminal record

ix) how he/she has contributed towards the wellbeing of the society by various social acts

x) sole bread earner of the family/dependents

xi) any medical history - "whether suffering from any particular ailment xii) and last but the most important" how the applicant is ready to abide by all the conditions put by the Court and how he/she would be ready to co-operate with the investigation.

Can the Anticipatory Bail once granted be cancelled by the Court?

Yes, if the Court which has the power to grant anticipatory bail also has the power to cancel the same if the prosecution/police authorities are able to show as to how the person released on anticipatory bail is not abiding by the conditions put down by the Court and also if the person given the benefit of anticipatory bail is not co-operating with the police authorities for investigation.

Whether the presence of the applicant is necessary in the Court?

If the Court has granted interim anticipatory bail to the applicant then in such case, the presence of the applicant shall be mandatory but in case the interim is not granted, the presence of the applicant at the time of final hearing of the applicant is mandatory. The Court may reject the application of anticipatory bail if the applicant is not present for the final hearing.

When can an Anticipatory bail be not granted?

There are certain circumstances where applications for anticipatory bail are normally refused. The offences which would require a custodial interrogation of the applicant, the case where there can be a chance of recovery of weapon from the accused, the cases where there is a chance of discovery of an incriminating article thereby directly showing the nexus between the accused and the offence in such case the anticipatory may be rejected.

The offences as described in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971 have made the provisions which state that the provisions of anticipatory bail would not be applicable but there is always an exception to the same and where the applicant is in a position to show that the offence alleged is prima facie not made out as per the ingredients of the relevant Sections and in such cases the anticipatory can be granted. The offences like murder, rapes, dacoity, economic offences are the instances where the courts are very cautious while granting anticipatory bails.

The trend now in cases of economic offences is that they are worst than the murders and rapes and hence forget anticipatory bails but not even regular bails are granted because of the apprehension of tampering with the evidence, witnesses etc. In offence like MCOC Act and Defence of India Rules, the provision of anticipatory bail would be like making a mockery of the law.

For offences/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971.

The provisions of s. 438 are normally refused to those accused of particularly heinous offences like murder, rapes

Where to make an application of Anticipatory Bail?

Law says Court of Sessions and the High Court have concurrent jurisdiction then in such cases the question is where to apply for the anticipatory bail? The application for anticipatory bail should be generally made in the Sessions Court but there are instances where the anticipatory bails have been directly granted by the High Court as the power to grant anticipatory bail is vested with Sessions as well as High Courts.

The proper approach would be to file an application in the Court of Sessions, exhaust the remedy and then if the same is rejected then to move the High Court. If a person files a anticipatory bail in the High Court first and his anticipatory stands to be rejected, then it would be binding on the Sessions Court and that would be like waiving off your right to apply in the Sessions Court.

What if the Sessions Court rejects the application and the applicant is arrested?

Let us assume that the application for anticipatory moved in the Sessions Court is rejected and the applicant still apprehends that before moving his bail application in the Hon'ble High Court, the police arrest the applicant, in such instances well the lawyer can move an application praying for interim protection to be extended till filing of the same before the High Court and this has been so held in the case of KSS Rajput vs. State of Maharashtra. But, this is a discretionary power in the hands of the Sessions Judges and needs a good argumentative skill.

Lastly the most important thing is that anticipatory bail should not be moved merely because the applicant feels to do so because it is not the provision which allows the crime to be committed and the protection be given but only in cases where there is a substantial chance of the applicant being falsely involved or the liberty of the applicant shall stand at stake for no fault of his own.

Lastly I would personally like to state that the weapon namely the anticipatory bail which has been vested in the hand of the litigants, is for sure a double edged weapon which requires to be handled very cautiously as it make give relief to the one who really makes out his case but can be really harsh if the same stands rejected and would prove a boon to the investigating authorities.


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Ronak Sirsikar 
on 21 August 2019
Published in Criminal Law
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