CRIMINAL PROCEDURE CODE-II

TOPIC: ANTICIPATORY BAIL

NAME: SHIVAM SOLANKI

REGD. No: 1841801035
Acknowledgement:
In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude Mr. Srinibas Nayak Sir for giving me a
guideline for assignment throughout numerous consultations. I would also like to expand
my gratitude to all those who have directly and indirectly guided me in writing this
assignment.

Many people, especially my classmates have made valuable comment suggestions on my

paper which gave me an inspiration to improve the quality of the assignment.

NAME-SHIVAM SOLANKI
REGD NO.-1841801035

BBA LLB (HONS.) SEC-A

2018-2023

CODE- LC323

SEMESTER VI
Contents:

• Introduction
• Analysis of section S.438 CR.P.C
• Relevant Case Laws
Introduction:

The concept of Anticipatory Bail comes into place when the accused may rightfully fear
arrest in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in
order to get temporary freedom until his case is disposed of. Depending on the gravity of the
allegations, a person may be able to avoid arrest altogether. However, there are cases in
which arrest is made and the accused is set free as per the provisions of the bail as given
under the Criminal Procedure Code. In cases of Criminal cases, especially those pertaining to
dowry, anticipatory bail comes as a relief to many accused person. It is literally applied for in
anticipation of arrest.

SECTION 438 (CRPC)

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having
committed a non- bailable offence, he may apply to the High Court or the Court of Session
for a direction under this section; and that Court may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it
may include such conditions in such directions in the light of the facts of the particular case,
as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police
officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the
Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the
bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police
station on such accusation, and is prepared either at the time of arrest or at any time while in
the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should issue in the first instance against
that person, he shall issue a bailable warrant in conformity with the direction of the Court
under sub- section (1).
PREREQUISITES FOR GRANT OF ANTICIPATORY BAIL

There are mainly 2 pre-requisites for applying for Anticipatory Bail before the appropriate
court.

1. The offence against which the bail is sought should be a non-bailable offence.
2. There should be a grave apprehension that the accused will be arrested by the police
authorities for such a non-bailable offence.

Application of Anticipatory Bail

Anticipatory bail is literally applied for in anticipation of arrest. It is a direction to release a

person on bail, issued even before the person is arrested. If the accused has a reason to
believe that he or she may be arrested on accusation of having committed a non-bail able
offence then he or she has the right to apply for an anticipatory bail in the Sessions Court or
High Court. One may apply for anticipatory bail after learning about a criminal complaint
made against them to the police by their wife, or by any threats made by hr family against
themselves and their family. It is also important to know whether, in cases where the FIR has
been filed, the offence is bail able or non-bail able. While in the former bail in granted as a
matter of right, the grant of bail in the latter is based on several contingencies.

Procedures

The public prosecutor will talk to the police officer concerned. If there is no FIR filed, the PP
would be of the view that there were no grounds for granting anticipatory bail. The judge will
agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail. The
lawyer will make an oral prayer for seven days pre-arrest notice in case the police formulate
an intention to arrest. In all the above cases, judge will grant plea. An order will be passed
accordingly. This is called the ‘notice bail' commonly. If the bail application is rejected in
the Sessions Court then it would be applied in High Court. If the High Court also rejects the
bail, then further application on Supreme Court is permitted. In cases when the FIR has been
filed, the Investigating officer will send a notice of arrest. As soon as that notice is received,
one should apply for anticipatory bail following the same procedure as stated above.

The High Court or Court of Session may direct that any person who has been released on bail
be arrested and commit him to custody on an application moved by the complainant or
prosecution in case any of the conditions imposed by the Court are being violated.
Refusal to bail

A bail may be refused when there is an unacceptable risk of certain behaviours like the
accused person might not appear in court, commit further offences while on bail. A person
charged with a crime should not be denied freedom unless and until there is a good

reason.The main reason for refusing bail is that the defendant is accused of an imprisonable
offence and there are substantial grounds for believing that the defendant would abscond
Analysis of section S.438 CR.P.C

The section is divided into 3 sub-sections, which have been analysed below:

1. SUB-SECTION 1

According to sub-section 1, any person can apply for anticipatory bail if he has a reason to
believe that he may be arrested on accusation of having committed non-bailable offence.
Here the legislators were clear that such an application can only be made if the offence for
which the Anticipatory bail is filed is a non-bailable offence. The sub-section 1 further
provides that such an application can only be moved before the High Court or Session Court
that is empowered to give direction to the investigating authority seeking arrest of such
applicant, to release the applicant on bail in case of arrest for nonbailable offence. However,
the Parliament in the year 2005, brought in an amendment requiring the courts entertaining
such an application, to be more cautious while granting any relief under this provision. The
amendment brought in the list of guidelines viz., the court shall take into consideration the
gravity of offence, the courts shall take into consideration the antecedents of the applicant
and also look into the possibility of the applicant avoiding the trial by fleeing if Anticipatory
bail is granted and the court shall also consider if the accusations made in the FIR are made
with an intention to harass the applicant of Anticipatory bail. The sub-section (1) further
states that, in case the application for Anticipatory bail has been rejected by the concerned
court or if interim relief is not granted while the pendency of the said application then it is
open for the investigating agency to arrest the said applicant without warrant on the basis of
the accusation apprehended in such application. Here the legislature has given secret powers
to investigating authority to take into account the apprehension made out by the applicant and
to consider his apprehensions as alleged crime and arrest him to investigate why he is
apprehending such an arrest.

Further Sub-section "1(A)" was added in 2005 amendment which states that in case interim
relief has been granted by the concern court then a notice shall be issued to the Public
Prosecutor and the SP/DCP which should not be less than 7 days in order to give reasonable
time to prosecutor to defend the said application before the application is finally heard. By
inserting this provision, the Parliament made it very clear that if the court is not forthwith
rejecting the relief for anticipatory bail and if the court has prima facie found any merits in
the application, then the application under this section cannot be disposed off unless and until
the Public Prosecutor is heard.

Sub-Section 1(B) was added vide the amendment of 2005 which provides that if the public
prosecutor makes an application before the court where the Anticipatory bail is pending then
the presence of the applicant is required during the final hearing or at the time of passing the
final order, and if the concerned court deems it necessary to allow the same then the presence
of the applicant is obligatory and compulsory.

2. SUB-SECTION 2

This sub-section lays down certain conditions which need to be put on the applicant while
granting him interim protection.

3. SUB-SECTION 3

This sub-section states that if the application under this provision is allowed, and if such a
person is subsequently arrested without warrant, then he should be released on bail
immediately. In case the magistrate takes cognizance and issues warrant against such person
then such a warrant shall be a bailable warrant.
RELEVANT CASE LAWS:
1-No time limit could be fixed while granting Anticipatory Bail

Sushila Agarwal v. State of Delhi 1

The Hon'ble court was pleased to frame 2 questions while deciding the landmark judgment
viz.:

1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited
to a fixed period so as to enable the person to surrender before the trial court and seek regular
bail &

2. Whether life of anticipatory bail should end at the time and stage when the accused is
summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by
holding that there can be no time limit set for the Anticipatory Bail by the court granting the
same. The five-judge bench was pleased to unanimously hold that " the protection granted to
a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should
inure in favour of the accused without any restriction on time."

Answering the second question the Hon'ble court held that "The life or duration of an
anticipatory bail order does not end normally at the time and stage when the accused is
summoned by the court, or when charges are framed, but can continue till the end of the trial.
Again, if there are any special or peculiar features necessitating the court to limit the tenure
of anticipatory bail, it is open for it to do so."

The Supreme Court was cautious while answering the second question by granting
discretionary powers to the court to limit the tenure of the Anticipatory Bail in case of special
or peculiar facts of case.

2-Not granting Anticipatory bail may cause violation of fundamental rights of an

individual under Article 21 of the Constitution of India

Badresh Bipinbai Seth v. State of Gujarat

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat2 was
pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code
is conceptualised 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 Code explains that an anticipatory bail is a pre-arrest
legal process which directs that if the person in whose favour it is issued is thereafter arrested
on the accusation in respect of which the direction is issued, he shall be released on bail."

The apex court while observing the above celebrates the two provisions and related them
together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand
and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld
the fundamental right of the citizen.

3- Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with

maximum 7 years imprisonment

Arnesh Kumar v. State of Bihar

Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar3 while deciding an
application for ABA for offences u/s 498A, felt it necessary to observe that there should be a
mandatory notice u/s 41A to be sent to the accused if he is booked for offence with
punishment up to 7 years.

4-Rights of First Informant to intervene in Anticipatory Bail Application

Potdar v. State of Maharashtra

The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of Maharashtra4 held
that, if victim of the offence appeared in the court seeking permission to be heard, then
opportunity of being heard is to be given to him or her.

However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra,5 took
a slightly contrary view to what we discussed above. The court held that "The upshot of this
analysis is that no vested right is granted to a complainant or informant or aggrieved party to
directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is
given to him but he must always bear in mind that while the prosecution must remain being
robust and comprehensive and effective it should not abandon the need to be free, fair and
diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all
times remain in control of the prosecution and a counsel of a private party can only assist the
Public Prosecutor in discharging its responsibility. The complainant or informant or
aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that
his interests in the prosecution are not prejudiced or jeopardized.

5- Is it Mandatory for police to arrest a person only because his ABA is rejected?

M.C Abraham and Anr v. State of Maharashtra

The Hon'ble Supreme Court, in case of M.C Abraham and Anr v. State of Maharashtra and
Anr6, has held that it is not mandatory for the police to arrest a person merely because his/her
Anticipatory Bail has been rejected.
CITATIONS

1 2020 SCC OnLine SC 98

2 (2016) 1 SCC 152

3 (2014) 8 SC C 273

4 2009 ALL M.R. (Cri.) page 687

5 (2014) SCC online SC 257

Conclusion
Section 438 is a procedural provision which is concerned with personal liberty of an
individual, entitled to the benefit of the presumption of innocent since he is not, on the date of
his application for Anticipatory Bail, convicted of the offence in respect of which he seeks
bail. Although the power to release on anticipatory bail can be described as of an
"extraordinary" character this would not justify the conclusion that the power must be
exercised in exceptional cases only. It is not necessary that the accused must make out a
special case for the exercise of the power to grant anticipatory bail.