Anticipatory Bail

ANTICIPATORY BAIL:
Section 438 of Cr.P.C. deals with anticipatory bail. When any person has an apprehension or reason to believe that he may be arrested of an accusation of having committed a non-bailable offence then he may apply to High Court or Court of Sessions for direction that in the event of arrest he shall be released on bail. The said powers are exclusively vested with the Court of Sessions and High Courts. For considering the application for anticipatory bail the prerequisite condition is that:

• the offence must be non-bailable and cognizable.
• there must be a sufficient reason to believe that the applicant may be arrested in said accusation.

Scope and ambit of Section 438 Cr.P.C (Anticipatory Bail).

It is apparent from the Statement of Objects and Reasons for introducing section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases.

It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyse this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.

The Constitution Bench of The Hon’ble Supreme Court in Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory bail. This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:

1. Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
2. Filing of FIR is not a condition precedent to exercise of power under section 438.
3. Order under section 438 would not affect the right of police to conduct investigation.
4. Conditions mentioned in section 437 cannot be read into section 438.
5. 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.” Powers are discretionary to be exercised in light of the circumstances of each case.
6. Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Later, in the matter of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors the following factors and parameters has emerged into larger consideration while dealing with the anticipatory bail:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. the possibility of the applicant to flee from justice;
4. The possibility of the accused’s likelihood to repeat similar or the other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.