What is anticipatory bail?

To understand Anticipatory Bail, we may first try to understand the concept of Bail in general.

A Bail is a legal guarantee by a person, who is accused of committing any offence which is punishable by imprisonment, for participating in the investigation and facing the trial before the court by making himself present before the police/ court whenever called.

The Indian legal system through Code of Criminal Procedure provides two kinds of bail. Regular Bail, one that is sought from court post arrest of accused by police. Anticipatory Bail, one that is sought from court even without getting arrested.

Bail is a recourse in law that a person may be entitled to in order to get freedom until investigation by police and trial by court is completed. In cases of Criminal cases, anticipatory bail comes as a relief to many accused persons. It is literally applied for in anticipation of arrest. The anticipatory bail helps an accused to legally strengthen his case

Anticipatory bail became part of the new Criminal Procedure Code in 1973 (when the latter replaced the older Code of 1898), after the 41st Law Commission Report of 1969 recommended the inclusion of the provision. It was included to protect the arbitrary violation of the right to personal liberty of the person. Anticipatory bail means when any person has reason to believe that he may be arrested on accusation of having committed a non bailable offense, he may apply to the Court of Session or the High Court; to direct that in the event of such arrest, he shall be released on bail. According to the section 438 of The Code of Criminal Procedure (CrPC), the Court of Session and the High Court are authorized to entertain the Anticipatory bail applications. Section 438(1) of the Code of Criminal Procedure, 1973, reads: “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.”

Where it should be filed?

The High Courts and Court of Sessions in India are empowered to make an order granting anticipatory bail that in the event of arrest. Generally, the applicant has to first approach the Court of Sessions for moving an application for Anticipatory Bail unless special circumstances exist for filing the same in the High Court. The Applicant is free to approach the Courts within whose jurisdiction he apprehends his arrest. It is irrelevant that the alleged offence has been committed outside the jurisdiction of such courts. If the courts do not have the required territorial jurisdiction, they may still grant Anticipatory Bail for a short term with adequate safeguards for approaching the Court having jurisdiction to entertain such application after considering the facts and circumstances involved therein.

Circumstances under which Anticipatory Bail is granted

The reason behind putting such provision in the code is to prevent the innocent persons from being implicated in false cases by powerful peoples or any other, and so anticipatory bail has to be granted only in exceptional cases where it appears to the court that the person seeking anticipatory bail is being framed in the charge.

*Anticipatory Bail is granted where an exceptional case is made out which indicates that there are adequate reasons to believe that the applicant may be arrested on baseless grounds.

*Where the court believes that accusations have been made with unscrupulous motive or with an intention to cause injury/humiliation to the applicant and having him so arrested.

*If the court believes that the allegations which are made against the applicant are vague, indeterminate, unsettled or general in nature.

*If the applicant has reasonable ground to make the court believe or satisfy that he hails from a reputable family, have deep roots in the society and is not likely to abscond or escape the process of the court and in any means.

*If the complainant is an influential person in respect to the accused and/or the case has been filed to satisfy political rivalry.

Conditions for granting of anticipatory bail

While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2).

S. 438(2) reads: “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.”

Offences under which Anticipatory Bail application is filed

The application for anticipatory bail can be filed in cases of both, bailable as well as non-bailable offences usually depending upon the kind of offence in accordance with the relevant provision of the CrPC. It has been stated in Section 436 that in situations when any person, other than a person accused of a non-bailable offence has been arrested or detained without warrant by an officer in charge of a police station, or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person needs to be released on bail.

Tenure of Anticipatory Bail

A five-judge Constitution bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, however, observed that the protection granted to a person under Section 438 of CrPC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. 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. [Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98, decided on 29.01.2020]

What steps to be taken if the FIR is registered in Noida and Greater Noida cities of Gautam Buddha Nagar

In a situation where an FIR has been filed, a notice of arrest will be sent by an investigating officer. As soon as the notice of arrest is served on the person, he shall file an application for anticipatory bail with the help of criminal lawyer. The lawyer is then required to follow the above procedure.

Which are the Police Stations over which Noida/Gautam Buddha Nagar Session Court has the jurisdiction for anticipatory bail?

Currently there are 22 Police Stations in Gautam Buddha Nagar, 9 police stations including one Women’s Police Station in Noida; and 13 police stations in Greater Noida. The name of Police stations (with CUG number) falling under jurisdiction of Gautam Buddha Nagar District and Session Court are:

Police Station (CUG No.): Sec- 20    (9870395059); Sec- 39 (9870395060); Expressway (9870395061); Sec-24 (9870395062); Sec-58 (9870395063); Phase 3 (9870395064); Sec-49 (9870395065); Phase 2 (9870395066); Women Police Station (9870395067); Kasna (9870395068); Knowledge Park (9870395069); Surajpur (9870395070); Greater Noida (9870395071); Dankaur (9870395072); Ecotech 1 (9870395073); Ecotech 3 (9870395074); Bisrakh (9870395075); Badalpur (9870395076); Dadri (9870395077); Jarcha (9870395078); Jewar (9870395079); Rabupura (9870395080).

The government has sanctioned two more police stations, in Phase 1 and Sector 142. Besides this, four other police stations – Okhla Barrage, Sector 106, Sector 63 and Sector 115 — have been proposed.

How to seek interim relief in anticipatory bail application?

In the above cases, a person who is going to be tried for the above offences needs to consult a criminal lawyer who will help him in getting anticipatory bail. It is then the lawyer’s responsibility to file a vakalatnama and an application for anticipatory bail. Subsequently, after the petition is filed, the hearing is scheduled. Generally, in the first hearing all relevant papers such as case diary are sought by the Court and the concerned Police Station is directed to present it before the Court and thereafter the next date is scheduled. In the next date, the advocate on behalf of the accused has to argue the case and has to present the relevant facts which are pleaded in the anticipatory bail application. All the relevant documents in the form of annexure, be produced before the court where the applicant has to make the court believe or satisfy on reasonable grounds that the accused is not accused in any other case and has no criminal background, hails from a reputable family, have deep roots in the society and is not likely to abscond or escape the process of the court and in any means.

What are the obligations of accused who has got Interim Bail in Anticipatory Bail application?

While granting anticipatory bail, the Sessions Court or High Court can impose the conditions as laid down under Section 438 and/or any other condition which the court reasonably believes shall be obligatory for the accused to discharge. As envisaged under sub-section (2) of Section 438 the accused has an obligation to make himself available for interrogation by a police officer as and when required. The accused should 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. The Court can also include such conditions as directions as may be imposed under sub-section (3) of Section 437, as if the bail were granted under this Section.

Relevant Case laws regarding Anticipatory Bail –

* Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) – a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty). It was observed by the Hon’ble Court, “It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.”

The Supreme Court laid down the following guidelines for exercise of discretionary power:

1. The power though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution and circumspection must be used while exercising such powers.
2. The Individual applying for anticipatory bail must have a reasonable apprehension of getting arrested for a non-bailable offence, which can be objectively examined by the court.
3. Anticipatory bail must not be denied in cases where the accused is suspected to have committed an offence punishable in the form of death penalty or life imprisonment unless the court has sufficient evidence before it to justify the refusal.
4. Blanket or protective orders of bail should not be passed. Also, for efficient investigation, certain conditions can be imposed under Section-438(2) such as on discovery of a material or evidence in regards to the case.
5. Filing of FIR is not a condition precedent to the grant of anticipatory bail under section 438 and the individual can be granted bail as long as no arrest has been made.
6. The provisions under Section 438 cannot be invoked after the arrest has been made.
7. Under Section 438, interim bail order can be passed without issuing a notice to the Public Prosecutor but it should be mandatorily issued to him afterwards. The court has the discretionary powers to impose suitable conditions in case of such interim bails.
8. The court has the power to limit the operation of anticipatory bail orders until after the FIR is filed. The applicant may be asked to obtain a bail order under Sections 437 or 439 of Cr.P.C. after the filing of FIR has taken place.

* In re Digendra Sarkar (1982) – It was held that the provision for the anticipatory bail in Section 438 of the Code applies even when there is no “First Information Report” and no case for the commission of a non-bailable offence has been registered against a person. Therefore, the filing of a “First Information Report” is not a condition precedent to the application for anticipatory bail and in such a case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session.

* SS Mhetre vs State of Maharashtra & Ors (2010) – The Supreme Court here relied on the decision in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565] where the scope and ambit of the concept of anticipatory bail was dealt in a comprehensive manner. The scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench. It was said that legislature can only frame broad guidelines on anticipatory bail and the court has to apply it according to the circumstance of the case. Moreover, the duration of an order granting anticipatory bail could not be curtailed.

*Sushila Aggarwal v. State of NCT of Delhi, (2020) – In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. he 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.

Points to be kept in mind by courts, dealing with applications under Section 438, Cr.PC:

* When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.

* Depending on the seriousness of the threat of arrest the Court should issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

* Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The   need   to   impose   other   restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.

* Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.

* Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

* An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves commission of an offence.

* An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.

* If and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.

* It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term.

* The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) CrPC.

Hope above information turns out to be of help for the reader.