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When any person apprehends that police is going to arrest him/heron false or motivated charges, then, before his/her arrest he/she has the right to move the court of Sessions or the High Court under Section 438 of the Code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and anticipatory bail can be granted by Sessions Court and High Court.

The provision of anticipatory bail has many dimensions but in practical, a large number of under-trials are languishing in jail for a long time even for allegedly committing very minor offences because section 438 Cr.P.C. has not been allowed its full play.

However, the scope of power under section 438 CrPC was dealt with in detail by Hon’ble Supreme Court Constitution Bench in ‘Gurbaksh Singh Sibbia and Ors. v. State of Punjab’ [(1980) 2 SCC565], where scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench courts, in general, used to erroneously invoke such power only in exceptional or rare cases. No general guidelines have been laid down by Hon’ble Supreme Court for invoking power under section 438 CrPC for releasing accused but it has been held in various cases to consider below factors before granting benefit of bail to accused.

It all depends upon whether -

  • There is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • Nature of allegations- Severity/gravity of the allegations or severity of the punishment in the event of conviction;
  • Chances of the accused absconding- from the processes of law or whether the accused has roots in the society;
  • Whether the accused is a habitual offender;
  • Chances of the accused creating hurdles in the fair investigation or the trial;
  • Chance of witness or evidence being tampered with;
  • Case required custodial interrogation.
  • Likelihood of the offence being repeated;
  • Nature of evidence, which has been gathered by the investigating agency and if the offence is proved the maximum sentence, which it may entail and;
  • Frivolity in prosecution should always be considered.

It was held by Apex Court in ManekaGandhi v. Union of India, (1978 1 SCC 248), that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

That Constitution Bench of Honourable Apex Court in the case of ‘Gurbaksh Singh Sibbia and Others v. State of Punjab’ - (1980 2 SCC 565), emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution.

The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor and after hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. During this, the court would certainly be entitled to impose conditions for the grant of bail and public prosecutor or complainant would be at liberty to move the same court for cancellation or modification of the conditions of bail any time if liberty granted by the court is misused.

In case of refusal of Anticipatory bail by Session Court then petition before High Court lies and in case both courts reject the petition for anticipatory bail, then against the rejection order by Hon’ble High Court, the remedy lies by filing Special leave petition under Article 136 of Constitution of India before Apex Court.

Recent decision of the Supreme Court in the case of ‘P Chidambaram v. Directorate of Enforcement’ yet again gives rise to the extensive debate between custodial interrogation and anticipatory bail. The most comprehensive analysis of the nature and scope of Section 438 is contained in the Constitution Bench judgment of Gurbaksh Singh Sibbia (supra). This decision emphasizes that Section 438 has to be interpreted that principle of presumption of innocence in favor of the accused and power exercised under Section 438 cannot be interpreted in a manner that creates fetters or unnecessary restrictions. It is common knowledge that custodial interrogation is the weapon wielded by investigating agencies to secure clinching evidence against an accused. On the other hand, anticipatory bail is the shield deployed by an accused to avoid the inclemency of arrest and custody.

In short, anticipatory bail is an important shield given to innocent to protect themselves from false and motivated cases to protect their personal liberty as set forth under Article 21 of the Constitution of India.

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Category Criminal Law, Other Articles by - Kappil Cchandna