Landmark Judgments on Anticipatory Bail Which Developed the Law of AB Through Time

INTRODUCTION 

The word “bail” comes from the old French word “Baillier,” which means to deliver or hand over. The Law Lexicon defines bail as ‘security for the appearance of the accused person, on giving which he is released pending trial or investigation’. Black’s Law Dictionary describes it as a security like money or bond, often required by a court to release a prisoner who must appear later.

Generally grant of bail means to set at liberty a person arrested or imprisoned on security (which’s otherwise known as being released on Jamin) being taken off his appearance in the court on a particular day.
Under BNSS, Section 2(b) “bail” has been defined as a means to release a person accused of or suspected of commission of an offence from the custody of law upon certain condition imposed by an officer or court on execution by such person of a bond or a bail bond.

There is a phrase most often used that "bail is the rule, jail is the exception” reflects the legal principle that individuals accused of crimes should be granted bail as a general rule, with incarceration being a reserved measure. This principle is rooted in the presumption of innocence and the importance of personal liberty. As per the criminal procedure Bail is a matter of right in Bailable Offence, where it’s a discretion of court in case of Non- bailable offence.

ANTICIPATORY BAIL 

There are different kinds of Bail like Regular Bail, Anticipatory (Pre-Arrest) Bail, Interim Bail, Default Bail has been elucidated under BNSS.

Anticipatory bail is a pre-arrest legal provision that allows an individual to seek bail in anticipation of being arrested for an alleged offense. 

Provision regarding Anticipatory Bail has been dealt under S/438 CrPC i.e. U/482 of current BNSS. 

• Application and Forum (Section 482(1))
An individual can apply for anticipatory bail under BNSS if they have a genuine apprehension of arrest for a non-bailable offence. The application for anticipatory bail can be made to:

The High Court, or

The Court of Session.

The courts have the authority to direct that the applicant be released on bail in the event of arrest, subject to specific conditions to ensure compliance with legal processes.

• Conditions for Granting Anticipatory Bail (Section 482(2))
When granting anticipatory bail, the court may impose several conditions to prevent the misuse of the relief. 
These conditions include:

a. The applicant must make themselves available for police interrogation as required.
b. They must not directly or indirectly induce, threaten or Promise any person related to the case to influence their testimony.
c. The applicant must not leave India without prior court permission.
d. Additional conditions may be imposed as per the provisions under Section 480(3) of BNSS.

• Consequences of Granting Anticipatory Bail (Section 482(3))
Once anticipatory bail is granted, if the accused is subsequently arrested without a warrant, they shall be released on bail, provided they are willing to furnish the necessary bail bonds. Furthermore, if the Magistrate decides to issue a warrant, it shall be a bailable warrant in accordance with the court’s directions.

• Exceptions to Anticipatory Bail (Section 482(4))
Anticipatory bail under BNSS is not applicable in cases involving heinous offences, such as:

Section 65: Punishment for rape in certain cases.

Section 70(2): Gang rape of a woman under 18 years of age.

LANDMARK PRECEDENTS

As far has Indian Criminal Jurisprudence is concern , the concept of Pre-Arrest Bail has undergone phases of development  in its principle & application which has been explained in this article through various landmark precedents of the Honourable Supreme Court.

1.BALACHAND JAIN V. SATE OF MP 1976 SC:
It was one of the first Supreme Court judgements to interpret the concept of Anticipatory Bail under Section 438 CrPC.

ISSUE: The issue involved was whether anticipatory bail could be granted and under what conditions, given that proper the concept was novel and considered an “extraordinary” remedy.

DECISION: The SC charecterized anticipatory bail as a disrectionary and exceptional relief. It clarified that an order of anticipatory bail takes effect only upon arrest -- it is a discretion to release the person on bail in the event of arrest, not a blanket immunity from arrest. The court opined that “bail, not jail,is the basic rule” and pre-trial detention should not be the norm, reaffirming the primacy of personal liberty. However, the court also noted that anticipatory bail should be granted sparingly in appropriate cases due to its extraordinary nature.    

2.STATE OF MAHARASTRA V. VISHWAS SHRIPATI PATIL 1978 BOM HC
ISSUE: Whether an anticipatory bail order could be cancelled or recalled by a higher court due to procedural lapses or misuse, despite no explicit cancellation provision in Section 438 CrPC.

DECISION: The Bombay HC quashed the improperly granted anticipatory bail and held that a court has inherent power to cancel an anticipatory bail if it was granted adhering to proper procedure or if new circumstances warrant cancellation. Specifically, it emphasized that notice to the prosecution (or exceptional reasons for is dispensing with notice) is required for anticipatory bail, and courts must record reasons for granting such bail. The HC noted that anticipatory bail is special privilege and should not be misused – if the relief is found unnecessary or obtained on misrepresentation, it can be recalled. (Vide Para 5, 6)

3.AMIYA KUMAR SEN V. STATE OF WB 1979 SC: 
ISSUE: Whether a person whose anticipatory bail is rejected by Court of Session, Can file a fresh application before HC or if the HC should entertain it only as an appeal/revision of the Sessions Court’s order.

DECISION: The Supreme Court held that both the Court of Session and the High Court have concurrent jurisdiction to grant anticipatory bail. However, an application should not file simultaneous or repetitive applications in both forums on the same acts. If the Sessions Courts denies anticipatory bail, the proper course is to appeal or apply for revision in the High Court rather than filing a fresh independent application on identical grounds. It is within the High Court’s discretion to decide whether to entertain the matter, but the application must disclose the prior denial. (Vide Para 7)

4.SHRI GURBAKSH SINGH V. STATE OF PUNJAB 1980 SC:
ISSUE: Can courts impose a time limit on anticipatory bail? Should the restrictions from regular bail (437 CrPC) apply to anticipatory bail? Must the applicant show “special” exceptional circumstances?

• DECISION: The Constitution Bench overruled the High Court’s restrictive guidelines and established a liberal interpretation of Section 438.The power to grant anticipatory bail is wide and discretion, and no inflexible or stringent conditions (beyond those in the statute) should fetter that discretion. Courts should assess each case on its merits, without any general rule limiting anticipatory bail to exceptional situations.
• The conditions applicable to regular  bail in section 437 CrPC ( such as prohibition on bail for serious offenses) are not make out a “special case’’ beyond the ordinary to believe an arrest is imminent.
• Anticipatory bail is a crucial instrument of personal liberty. The Court emphasized that its protection is in line with Article 21 (right to life and personal liberty) and it should be interpreted liberally in favour of safeguarding individual freedom.

At the same time the court acknowledged that blanket anticipatory bail orders should be avoided. There must be specific accusation apprehended; the applicant should have a reasonable basis for the arrest fear. Courts may impose appropriate conditions (like cooperation with investigations) while granting anticipatory bail, but these should be tailored to the facts of the case.

5.SANGEETA BHATIA V. NCT OF DELHI 2022
The Delhi HC affirmed anticipatory bail as a statutory right in paragraph 13 of its judgement. The court stated:

Since the genesis of the statutory right to anticipatory bail is traced under Article 21 of the constitution, it’s essential to understand the true Import of the same. The Hon’ble Supreme Court has held that such right to life does not merely mean animal like existence but includes wider connotations to make the life meaningful. Going a step further, anticipatory bail has been enshrined as a statutory right as well under Section 438 CrPC. Thus, there is no doubt that the provision merits being invoked in appropriate cases, more so, in light of the general bail jurisprudence where in – bail is a matter of right and ‘bail, not jail is the general rule’.”

6.SUSHILA AGGARWAL V. STATE (NCT OF DELHI) AIR 2020 SC
The Supreme Court clarified that anticipatory bail under Section 438 of CrPC is not inherently time bound and can extend until the conclusion of the trial, subject to the conditions imposed by court.

The court emphasized that anticipatory bail can continue till the end of the trial, provided the accused complies with the conditions imposed by the court. This approach ensures that personal liberty is not curtailed unnecessarily.

While the default position is that anticipatory bail is not time bound, the court acknowledge that in special or peculiar cases, it is open for the court to limit the tenure of anticipatory bail based on the facts and circumstance of each case.