What do you mean by anticipatory bail? When it is granted? What is the difference between general provisions of bail and anticipatory bail?

Question: What do you mean by anticipatory bail? When it is granted? What is the difference between general provisions of bail and anticipatory bail?

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Answer

The concept of anticipatory bail has been the by-product of judicial decisions on the interpretation of Sections 496, 497, and 498 of the Code of Criminal Procedure, 1898. The grant of anticipatory bail has now been crystallized into a legal concept in Section 438 of the Code of Criminal Procedure 1973.

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under a non-bailable offence in India can apply for anticipatory bail under the provisions of section 438 of The Code of Criminal Procedure, 1973. It is basically bail before arrest, a person arrested cannot seek anticipatory bail, he would have to move for regular bail. The words anticipatory bail is neither found in section 438 nor in its marginal note. In fact, anticipatory bail is a misnomer. When a court grants anticipatory bail, it makes an order that in the event of arrest, the person shall be released on bail.

This provision precisely explains the meaning and procedure for the grant of anticipatory bail under the Code. The genesis of the concept can be traced to the recommendations of the Law Commission, which thought it could be a useful addition to the protection of the rights of a person.

The Law Commission observed,

“the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.”

When can anticipatory bail be granted?

The power to grant anticipatory bail is of an extraordinary character and must be exercised sparingly, and only in exceptional cases section 438 is an application for anticipatory bail could be made “to the High Court or the Court of Session” and that it could not be made in both the Courts. The court relied on Amiya Kumar v. State of West Bengal, 1971 Cri LJ 288(CAL).

However, some guidelines for the exercise of power under section 438 were ascribed in the words of Bhagwati J. in Balchand Jain v. State of M.P., A.I.R. 1977 SC 366 as follows:

“Section 438 does not contain unguided or unanalysed powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The words ‘for a direction under this section and Court may if it thinks fit direct’ clearly show that the Court has to be guided by a large number of considerations including those mentioned in Section 437 of the Code”.

It has been held by the Supreme Court that for the grant of anticipatory bail, section 438 need not be invoked only in exceptional or rare cases. Discretion must be exercised on the basis of available material and facts of a particular case. Where in Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312 facts showing that the accused has joined the investigation and is fully cooperating with the investigating agency and is not likely to abscond, the court held that in that event, custodial interrogation should be avoided.

Difference between general provisions of bail and anticipatory bail

Bail is a post-arrest legal process, that is, it is granted only after the arrest of the person, whereas anticipatory bail is a pre-arrest legal process in anticipation of the possibility of arrest of a person. Bail is ordinarily granted as a matter of right in case of a bailable offence, and it may also be granted in non-bailable offences under Section 437 of CrPC. but the power to grant anticipatory bail is of an extraordinary character which is to be used by the Court sparingly.

The major difference between the regular order of bail and the anticipatory bail is in the time when the bail is granted. The applicant applies for regular bail after the arrest is made. It is applied in order to secure the release from police custody. However, in the case of anticipatory bail, the application for bail is made in anticipation of arrest and, therefore, comes into force at the very moment of the arrest of the person.

The difference between regular bail and anticipatory bail was discussed in the case of Satpal Singh v. State of Punjab AIR 2018 SC 2011 as follows:

“Protection under section 438 is available to the accused till court summons the accused based on the charge sheet. On such appearance, the accused has to seek regular bail under section 439 and that application has to be considered by the court on its own merits. Merely because the accused was under the protection of anticipatory bail granted under section 438 that does not mean that he is automatically entitled to regular bail under section 439. Satisfaction of court for granting protection under section 438 is different from one under section 439 while considering regular bail.”

Also, it is to be noted that regular bail may be granted to the accused by any Judicial Magistrate or Court, but anticipatory bail may be granted only by the High Court or Sessions Court.

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