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Report No. 268

Chapter - VI

Anticipatory Bail

6.1 The expression "anticipatory bail" is also not defined in Cr.P.C. However, the Supreme Court in Balchand Jain v. State of M.P.146 has characterized anticipatory bail to mean 'a bail in anticipation of arrest'. The expression is a misnomer as it represents a futility that bail may be granted by the court in apprehension of an arrest. When a competent court grants "anticipatory bail", it issues an order that in case of an arrest, the person shall be released on bail.

The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra,147 observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence - presumption of innocence and the sanctity of individual liberty.

6.2 The Supreme Court emphasized that anticipatory bail is a device to secure the individual's liberty, and neither a passport for the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. History and object of introducing the provision of anticipatory bail can be traced back to judgment of the Supreme Court in Balchand Jain v. State of M.P148 and Gurbaksh Singh Sibbia v. State of Punjab.149 It has been held in the Gurbaksh Singh Sibbia's case that s. 438 of Cr.PC was enacted to protect those people who are implicated by their rivals in false cases for the purpose of disgracing them or for other purposes by detaining them in jail.150

6.3 The 48th Report of the Law Commission151 cautioned that the power of anticipatory bail is a power that must be exercised in 'very exceptional cases'. Although the legislature in its wisdom was keen to protect personal liberty and presumption of innocence152, it has led to the rampant misuse of the provision. Thus it further, recommended that to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after a notice to the public prosecutor. The initial order should only be made interim. It was also suggested that the directions may be issued only for the reasons recorded, if the Court is satisfied that such a direction is necessary in the interest of justice.

6.4 The Supreme Court of India in Balchand case153 observed that s. 438 of Cr.P.C. is an extraordinary remedy and should be adopted in special or exceptional cases. However, in Gurbaksh Singh Sibbia case154 the Supreme Court further clarified that although s. 438 of Cr.PC is extraordinary in nature, such power should be wielded wisely with due vigilance and the wise exercise of judicial power protects s. 438 of the Cr.PC against intemperate use.

6.5 Thus in Balchand Jain155 decision where it was observed that the power of granting anticipatory bail is extraordinary in character and it is only in exceptional case where it appears that a person might be falsely implicated, or frivolous cases might be launched against him, or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, then such power has to be exercised.

The court further went on to observe that apart from the conditions mentioned in s. 437 Cr.P.C., a special case must be made out by the petitioner for obtaining anticipatory bail. While the Supreme Court later adopted the Gurbaksh Singh156 view, various High Courts still rely upon the Balchand Case.157 It must be borne in mind that s. 438 of the Cr.PC does not form a part of Article 21 of the Constitution of India and it provides discretionary power to the High Courts and the Court of Sessions, in appropriate cases.158

6.6 In Sumit Mehta v. State of N.C.T. of Delhi159, the court observed that there must be a balance between the individual's right to freedom and personal liberty and the duty of investigation by police. Thus, any appropriate conditions may be imposed under s. 438 (2) of Cr.PC to ensure uninterrupted investigation. The conditions may be imposed only insofar as they are necessary to avoid the possibility of the person obstructing the course of justice. In Gurbaksh Singh Sibbia's case160 the court explored whether anticipatory bail be granted in relation to offences punishable with life imprisonment or death. It held that if the intention was to let the exceptions under s 437(2) of Cr.PC govern the relief under s. 438 of Cr.P.C, then there would have be an express provision to that effect.

6.7 Section 438 of Cr.PC must not be applied mechanically and anticipatory bail should not be granted in every case upon request. The discretion to grant anticipatory bail cannot be said to be totally untrammelled and unfettered. Further, judicial precedence can provide guideline or limitation to the discretion vested in the courts to grant anticipatory bail.161 The Supreme Court has cautioned in the case of Pokar Ram v. State of Rajasthan162 that since anticipatory bail intrudes the sphere of investigation of crime some very compelling circumstances have to be made out for granting anticipatory bail in serious offences.

6.8 The Supreme Court has recommended the following factors and parameters to be considered while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. 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;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arrest.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting large number of people.

vii. 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;

viii. 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 on the other hand harassment, humiliation and unjustified detention of the accused be avoided;

ix. The court to consider apprehension of tampering of the witness or apprehension of threat to the complainant and;

x. Frivolity in prosecution should always be considered vis-à-vis the element of genuineness in the matter. In the event of there being some doubt as to the genuineness of the prosecution, the accused should be considered entitled to an order of bail.

6.9 While on the question of considering the duration of anticipatory bail, the law on this point remains highly divergent and ambiguous. It is pertinent to note that the Parliament has not prescribed any duration for an anticipatory bail. It is vague, as it does not mention whether the order should be limited in time or if it is transient in nature until regular bail is obtained.

With regards to the determination of the operational period of the anticipatory bail, some courts follow the Gurbaksh Singh Sibbia163 stance where it was held that the court may limit the operation of the order if there are cogent reasons, keeping it operational for a short period after filing of FIR (First Information Report). In such an eventuality the applicant must move the court under s. 437 of Cr.P.C within a reasonable time after filing of FIR. However, the court has stated that there cannot be an absolute rule to limit the operation of the order and make it time bound.

6.10 After the precedent in Gurbaksh Singh Sibbia164 and prior to 1996, there was no practice of limiting the duration of anticipatory bail (with an exception of the Gujarat High Court). However, this was changed by the Supreme Court judgment in Salauddin Abdulsamad Shaikh v. State of Maharashtra.165 Before Salauddin, the Gujarat High Court in the case of Somabhai Chaturbhai Patel v. State166 held that since anticipatory bail cannot be permitted to interrupt a comprehensive investigation, relief under s. 438 of Cr.P.C would exhaust itself or will remain operative only till the expiry of a brief period of time from the date of arrest and the person accused of an offence will have to obtain a regular bail in its usual course.

The Gujarat High Court held that the order may also provide that it would become inoperative even if no arrest is made within 90 days of the order. However, it can be deduced that the Supreme Court has indeed consistently held that anticipatory bail should be for a limited period and it should come to an end on the expiry of the duration or extended duration fixed by the court granting anticipatory bail. It is for the regular court to deal with the matter after appreciating the evidence filed before the court, once the investigation has made substantial progress or the charge-sheet has been submitted.

6.11 The Karnataka High Court in the case of I.Y. Chanda Earappa v. State of Karnataka167 has also expressed the need to limit the duration of anticipatory bail. The Court held that while it is not obligatory for Court to limit an order of anticipatory bail in point of time, there is no prohibition in s.438 Cr.P.C., on imposing such conditions. Therefore, the duration must be considered by the Court in each case with due regard to personal freedom of the individual, the duty towards the public and, the duty of the Police to investigate into an offence which is in the interest of the public and such interest is no less important.

The Supreme Court has also held in K.L. Varma v. State168 that the order of anticipatory bail does not endure till the end of the trial and must be limited in its duration. The duration of anticipatory bail may extend up to the day on which the regular bail application is disposed or for a brief period thereafter to enable the accused persons to appeal to a higher court. The Supreme Court reiterated this position in Adri Dharan Das v. State of West Bengal,169and in Sunita Devi v. State of Bihar,170where it held that extending the protective umbrella of s. 438 Cr.P.C. for unlimited time would result in circumventing s. 439 of Cr.P.C.

6.12 It is needless to add that blanket order of anticipatory bail cannot be passed to protect every kind of unlawful activity or any eventuality because it adversely affects the full and fair investigation. The State of Tripura has amended the law by inserting a new section 439A of Cr.P.C which provides that in respect of grave offences specified in the clause (a) of s. 439A, of Cr.P.C a person apprehending arrest under IPC or the Arms Act or the Explosive Substances Act would not be released on bail unless the court is satisfied that the petitioner is not guilty of the offence or that there were exceptional and sufficient grounds to grant bail to the petitioner. The Commission is of the opinion that, apart from making the anticipatory bail operational for a limited time, there is need to grant anticipatory bail in certain offences with caution.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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