Anticipatory Bail CRPC: How to get bail in anticipation of an arrest

What is Anticipatory Bail?

Anticipatory bail means bail in anticipation of an arrest. Any person apprehended under arrest under a non-bailable offence in India can apply for Anticipatory Bail under section 438 of The Code of Criminal Procedure, 1973. It is bail before arrest; a person arrested cannot seek Anticipatory Bail CrPC; he would have to move for regular bail. Anticipatory bail is neither found in section 438 nor its marginal note. Anticipatory bail is a misnomer when a court grants anticipatory bail CrPC; what it does is to make an order that in the event of arrest, the person shall be released on bail.

In its wisdom, the legislature incorporated this provision for the grant of bail to a person apprehending arrest to prevent the disgrace of being jailed or remaining in custody before he can be released on bail. The old code of criminal procedure did not have any provision for the same, and the lawmakers realized that false and frivolous cases are filed against some people, and such persons have to be arrested before they can seek bail. Thus, a mechanism for preventing undue harassment and disgrace from arrest and detention was devised. In the landmark Gurubaksh Singh Sibbia case, the apex court opined, “It is conceptualized on the idea of protecting personal liberty guaranteed under the Constitution of India”. This said, it is a discretionary power and is not a matter of right. The court would use its discretion according to the facts and circumstances of the case and under stipulated guidelines.

A perusal of the Bare Act provisions would bring out the meaning clearly. Under the Code of Criminal Procedure, Section 438, provides for Direction for grant of bail to person apprehending arrest. The bare act reads as under:

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 subsection (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 subsection (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 subsection (1).

The court of Session or High Court can grant Anticipatory Bail after considering the following factors:

1. The nature and gravity of the accusation including but not limited to whether the accusation stem from personal vendetta and only to injure or harass the applicant.
2. The antecedents of the applicant especially prior conviction in a similar or heinous crime.
3. The guarantee that the applicant would be available to stand trial.

The Anticipatory Bail can have any of the following conditions as mandated by the Code of Criminal Procedure, 1973:

1. The applicant would make himself available for interrogation as and when needed meaning he would cooperate with the investigations.
2. The applicant would not induce, threaten or dissuade any witness.
3. The applicant would not leave India without prior permission of the court.
4. Any other condition like bail bond/ not being in vicinity/ not contacting complainant/ witness which the court may deem fit.

Once a person has been admitted to Anticipatory Bail CrPC, if arrested, he will be released immediately by the officer in charge. If the court has to issue a warrant, it would only be a bailable warrant in the first instance.

Though only the Court of Session and High Court have the power to grant Anticipatory Bail CrPC, a Special Leave Petition against the order of the High Court is also maintainable if admitted by the Supreme Court. A person may apply directly to the High Court or approach the High Court on dismissal of an Anticipatory Bail application by the Session Court.

There is a misconception amongst people fighting matrimonial cases like 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) that Anticipatory Bail is granted routinely. People who are facing charges like Attempt to Rape by some relative, Unnatural Sex, Rape by brother-in-law/ father-in-law, miscarriage etc, would vouch that it is not a cakewalk.

It is an extraordinary in character and unusual in nature. Only in exceptional cases should the court use it where it appears to them that the applicant is falsely implicated or a frivolous accusation is levelled against him. There are reasonable grounds for holding that he is not likely to abscond or otherwise misuse the liberty of bail. And it should be exercised with caution and prudence. (Union of India vs Padam Narain Aggarwal (2008) 13 SCC 305, AIR 2009 SC 254 and Bhadresh Bipinbhai Sheth vs State of Gujarat AIR 2015 SC 3090, (2015) 9 SCALE 403)

What factors are considered by a court while granting Anticipatory Bail?

In the Gurubaksh Singh Sibbia (Supra) Case, the apex court held that exercising power to grant anticipatory bail under S. 438 of CrPC, 1973 would depend on various circumstances. The cumulative effect must be seen, and any circumstance cannot be treated as having universal validity. Quite recently, in Siddharam Satlingappa Mhetre vs State of Maharashtra AIR 2011 SC 312, (2011) CrLJ 3095 (SC), the court illustrated Twelve parameters for consideration.

1. The nature and gravity of the accusation and exact role of the accused.
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 a cognizable offence.
3. The possibility of the accused to flee from justice.
4. The possibility of the accused’s likelihood to repeat similar or 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. Very careful evaluation of the entire available material against the accused.
8. Clear comprehension of the exact role of the accused in the case.
9. Consideration with greater care and caution of the material when the accused are implicated with others in the case based on common intention and a common object under the Indian Penal Code 1860 s. 34 and s 149 respectively (because over-implication in the cases is a matter of common knowledge and concern)
10. Striking a balance 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.
11. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. And
12. Frivolity and genuineness of the prosecution.

The SC itself noted that the above factors are not comprehensive but illustrative only. Nevertheless, the parameters for granting anticipatory bail must be satisfied, and the court has to record the reasons for granting it.

Lodging an FIR or even a complaint is not necessary to grant anticipatory bail CrPC. In Delhi, for example, the court grants notice bail (a sort of Anticipatory Bail CrPC only) for a limited duration even when the complaint is at the per-investigative stage. In Karnataka, the court grants Anticipatory Bail for a limited duration even when the complaint is not lodged. Also, successive applications for Anticipatory Bail are maintainable; however, for that to stand, there should be a material change in circumstances. Also, the court under whose jurisdiction the accused usually stays can grant Anticipatory Bail or Transit Bail even when the crime is registered in a different jurisdiction.

Another positive development for victims of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) is the restoration of the provision of Anticipatory Bail u/s 438 CrPC in the state of Uttar Pradesh. Now, the falsely accused persons and their families can heave a sigh of relief and save themselves from the embarrassment of being arrested first before taking regular bail. The provision of Anticipatory Bail can be directly invoked in court sessions.

In my weekend meetings, I have often been asked if section 41A CrPC has replaced the need for Anticipatory bail CrPC. Section 41A provides for the provision of notice of appearance of the accused before a police officer. It was inserted by the legislature in 2010 to curtail arbitrary arrests by the Police further. The Supreme Court had been in no uncertain terms telling the Police that “Power to arrest is not same as the need to arrest” and hence the same should be used by just application of mind. Also, “Bail should be a rule and Jail should be an exception” The police officer always proceeded to arrest the accused in non-bailable offences. The legislature added one extra layer of caution by inserting 41A and 41B in CrPC, 1973. The Police Officer has to record a reason for arrest in the memo and give the same to the magistrate in cases where the offence is punishable for less than seven years. It also said that if the arrest of such an accused is not warranted in conditions stipulated in section 41, he should just be given a notice of appearance so that his humiliation and harassment do not happen. The Apex court asked for compliance in the much celebrated and ”misquoted” Arnesh Kumar’s judgment. Arnesh Kumar’s judgment never substituted section 41A with the provision of Anticipatory Bail nor took away the powers of the Police Officer to arrest if the situation and the circumstances so desired.