Anticipatory bail: basic overview

Section 438 of CRPC deals with anticipatory bail, which is a bail sought in anticipation of an arrest. The anticipatory bails prevents an actual arrest. One of the reasons for anticipatory bail is to avoid any disgrace a person may face due to false cases.

Which Court can grant Anticipatory Bail?

The High Courts and Court of Sessions ("Courts") in India are empowered to make an Order granting anticipatory bail that in the event of arrest; a person shall be forthwith released on bail without having to undergo the rigor of jail.

Criterions for grant of Anticipatory Bail:

There are 2 criterion ?for applying for Anticipatory Bail

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

Do Anticipatory Bail and Article 21 complement each other?

In case of Badresh Bipinbai Seth v. State of Gujarat?the Supreme Court held 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."

Section 438 and Article 21 goes hand in glove and provision for granting anticipatory bail upholds fundamental right of citizen.?

Is FIR a pre requisite for Anticipatory bail application?

As the words suggests, the bail is in anticipation of a future arrest hence FIR is not a pre requisite of an anticipatory bail.

In re Digendra Sarkar vs. Unknown, 1982, It was held that the provision for the anticipatory bail applies even when there is no “FIR” and no case for the commission of a non-bailable offence has been registered against a person.

Time Limit for Anticipatory Bail

In Sushila Agarwal v. State of Delhi,2020 SCC online SC 98

?the Hon'ble court framed the question?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 ? The 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."

Anticipatory Bail in case of offences punishable with maximum 7 years imprisonment:

In the case of Arnesh Kumar v. State of Bihar ?, the Hon’ble Supreme Court held that while deciding an application for ABA for offences u/s 498A, it is?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.

If Anticipatory Bail is rejected :

In case application for anticipatory bail has been rejected by the Court or interim order not granted during pendency of the application, then the investigating agency can arrest the said applicant without warrant. However it was held in M.C Abraham vs State of Maharashtra and Anr, it was held by the court that it is not mandatory for the police to arrest a person only because his application for anticipatory bail has been rejected.

Exceptions to the Law

Criminal Amendment Bill 2018 added Clause 4 to Section 438 and created exceptions to the law. According to the said clause, anticipatory bail cannot be granted to a person accused of an offence of committing rape on a woman under 16 years of age, under 12 years of age , punishable under Section 376 (3), 376 AB, 376 DA and 376 DB respectively of the Indian Penal Code, 1860.