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Under Indian Criminal Law there is a provision for pre-arrest bail, normally termed as “anticipatory bail” since it is filed by an individual apprehending arrest, under Section 438(1) of the Criminal Procedure Code, 1973. Right to liberty is a natural and a fundamental right, hence the Law Commission of India in its 41st report recommended to incorporate this provision in procedure code as any such provision was not existing in the prevalent code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court. However, it is imperative to pinpoint the provision of section 438 (1), as it also grants discretion with the court to either reject the application forth with (without even issuing notice to the prosecution), or grant interim orders based on fundamental contemplated arrest, in the said provision.
Anticipatory bail is a direction to release a person on bail, at the time of arrest by the investigating agency. It is a power vested concurrently with the Sessions Court and High Court to be exercised only in non-bailable offences.
The subject of bail is related to the freedom and liberty of individual. The right to life and liberty is one of the indispensable right as enshrined under article 21 of the Constitution of India. As per the established criminal justice system prevailing in India, a person accused with offence or upon a case is registered against him, is arrested, and brought to trial before courts of law and punished/convicted. But in the process, the said accused person, has right to personal liberty and freedom, as he or she is deprived and the bail is a shield which can shelter the individual with personal liberty and freedom till proven guilty. It is for these specific reasons, one of the grounds for grant of interim/final protection in anticipatory bail is also that the court is empowered to check that the accusations have been made with object of injuring or humiliating such applicant by having him so arrested; as arrest by police machinery is nothing but arrest of fundamental rights guaranteed under the Constitution of India to every single citizen.
The courts therefore prima facie see that the mere allegations against an individual are not sufficient to deprive his personal liberty and freedom and therefore anticipatory bail comes to their rescue and act as a protector and more particularly a guardian of their fundamental rights, freedom and liberty.
Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi. [Maneka Gandhi v. Union of India, (1978) 1 SCC 248.]
The concept of the anticipatory bail is as a result of judicial interpretations as there was no room for this concept in the old Code of Criminal Procedure, 1897. It was added by the 41st report of Law Commission of 1969. It is a pre arrest bail given in advance when an arrest is expected or anticipated. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment has been passed in his case. Depending on the gravity of the allegations, a person may be able to avoid arrest, however, a person can apply for anticipatory bail even before an FIR has been registered against him, in anticipation that he has reasonable grounds to believe to be arrested.
Anticipatory bail is applied in anticipation of arrest. It is a direction to release a person on bail, at the time of arrest by the investigating agency. If the person has a reason to believe that he might get arrested for a crime for which he has been wrongfully implicated, then he has the right to apply for this type of bail. One may apply for anticipatory bail upon acquiring knowledge of a certain act of commission or omission which may constitute an offence and the same is not limited to be filed only in case of registration of crime or there is no requirement that the person apprehending arrest must wait till the registration of a crime. The grant of anticipatory bail is reliant on several contingencies and by and large is a discretionary subject to striking balance between the personal liberty and the power, requirement and purpose of investigation. The court while granting anticipatory bail may put conditions like no tampering with evidence, not to leave state or country without prior permission of the court, daily attendance before investigating officer or cooperation with investigating agency.
The landmark cases on anticipatory bail are as below:
The Hon’ble Supreme Court in Satendra kumar Antil Vs. CBI reported at 2022(10) SCC 51 while defending fundamental rights under article 21 issued new arrest regulations to ensure strict adherence to section 41 and 41A of Cr.P.C. These rules supplement the former rules that the Hon’ble Supreme Court had established in Arnesh Kumar vs. State of Bihar, reported at 2014 8 SCC 273. The court has also emphasised the need of separate bail related legislation and has given specific instructions in this report. This decision brings to light a number of long standing issues including the overcrowding of jails with undertrial prisoners who should not have been detained at the first instance, the colonial mentality of investigating authorities, the disregard for rules like “bail is rule and jail is exception”.
In Sushila Aggarwal vs. State NCT of Delhi reported at (2020) 5 SCC 1 the Constitution Bench of 5 Hon’ble Judges of the Apex Court rendered a key decision in this case, holding that anticipatory bail can be granted at any moment and can last all the way until the trial without being subject to any time restrictions. The Court further cited the Indian Independence Movement, noting that arbitrary, indefinite detentions and a lack of Institutional protections were key factors in mobilising the populace to call for Independence.
In Arnesh Kumar Vs. State of Bihar reported at (2014) 8 SCC 273 the Apex Court ruled that a compulsory notice to the accused to appear before the police officer under section 41A of Cr.P.C if he is tried for an offence with a punishment of imprisonment up to 7 years, was necessary when determining an anticipatory bail application for offences under section 498A IPC.
The entire edifice of law on anticipatory bail is reliant on Gurbaksh Singh Sibbia Vs State of Punjab (1980) 2 SCC 565 the 5 Judges Constitution Bench of the Hon’ble Supreme Court held that section 438 (1) shall be construed in the light of freedom & liberty guaranteed under Constitution’s Article 21. On a case-by-case basis the court might set the proper limitations. The court further stressed upon the guidelines to be followed as laid down in Maneka Gandhi vs. Union of India (1978) 1 SCC 248 judgment and concluded that the process “established by law” for depriving an individual of his life and liberty must be fair, equitable, and reasonable for the purpose of meeting the requirements of protection guaranteed under article 21.
Conclusion: All accused are not convicts and mandatorily putting every accused behind the bars amounts to a violation of human rights of such individual as it harms/jeopardise his reputation in society and lowers his dignity as well. Further, it is also the duty of the courts to see that the provision of anticipatory bail must be exercised in terms of the conditions prescribed in section 438 (1) of CrPC. It is also material to appreciate that, the grant of the anticipatory bail does not affect the trial before the regular court in any way. Moreover, to conclude anticipatory bail is a very important provision to safeguard the innocent persons arrayed as accused in the criminal justice system prevailing in India.
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