Principles of Anticipatory Bail

It is based on Blackstone’s formulation in criminal law:-

“It is better that ten guilty persons escape than that one innocent suffer”.

Section 438 of the Code clearly lay down in the opening statement itself that when a person has a “reasonable apprehension” to believe that they can be arrested on an accusation for commitment of a non-bailable offence they can move to the High Court or the Court of Sessions for grant of an “anticipatory bail”.

For instance, Mr. A got married to Ms. B. After their marriage the things were not smooth. Ms. B then filed a case against him under section 498(A) of Code of Criminal Procedure, 1973. He had a reasonable apprehension that he could be arrested so he moved to the court for grant of an “anticipatory bail”.

Section 438 of the Code of Criminal Procedure empowers the High Court and the Court of Session to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested.

Guiding Principles while grant of Anticipatory Bail
The Supreme Court in ‘BhardreshBibinbhaiSheth V. State of Gujarat and other’ – 2016 (2) TMI 416 – SUPREME COURT,the Supreme Court laid down the Principles and Factors for grant of anticipatory bail.
The Court observed that the expression “may, if it thinks fit” occurring in Section 438(1) of the Code of Criminal Procedure (Code), gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”.
Jurisdiction for filing an Anticipatory Bail:

  • The High Court and a Court of Session, have concurrent jurisdiction to grant anticipatory bail.
  • The High Courts of Rajasthan, Madhya Pradesh, Gujarat and Delhi have been firm on the legal position that a court within whose jurisdiction a person apprehends arrest for a non-bailable offence is competent court to grant anticipatory bail and a court has no jurisdiction to grant anticipatory bail to the petitioner against whom a case has been registered in another state.
  • The Kerala High Court has also held that an arrest made outside the State will not be protected by an order under Section 438 unless the offense itself is alleged to have committed within the state’. Whereas on the other hand, the Bombay High Court has taken a contrary view and held that if the offense is committed in one state but arrest is expected in another State, the High Court in the latter state can entertain application for anticipatory bail.

Guiding Judgements on Anticipatory Bail:

1. Gurbaksh Singh Sibbia Vs. State of Punjab (AIR 1978 P&H 1 : 1978 Crl LJ 20 (FB))
It dealt with the scope and ambit of the concept of anticipatory bail. Section 438 Cr.P.C. is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The Constitution Bench’s relevant observations are set out as under:
“……..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail”.

2. ‘Siddharam Satlingappa Mhetre V. State of Maharashtra’ (2010 (12) TMI 1085 – SUPREME COURT)
It provided the factors and parameters that are needed to be taken for consideration while dealing with anticipatory bail such as the nature and gravity of the accusation, the antecedents of the applicant, possibility of the applicant to flee from justice, possibility of the accused’s likelihood to repeat similar or other offences, etc.
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.

Cancellation of Anticipatory Bail:
There is no specific provision in Section 439 regarding cancellation of bail. Even in absence of an express provision of cancellation of bail in the Code, the power of cancellation springs from the overriding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.