Anticipatory Bail: Important Supreme Court Judgments

15 May, 2024

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“Bail is a rule and jail is an exception.”

-Supreme Court in Balchand alias Baliya case

Bail is defined as the temporary release of an accused by submitting an amount of money to a court and returning later for a trial. In other words, Bail is when someone accused of a crime is let out of jail temporarily while they wait for their trial, often after paying a certain amount of money to ensure they will show up in court. According to the Merriam-Webster dictionary, the term ‘bail’ is defined as “the temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing.” The primary purpose of bail is to ensure the defendant's presence in court proceedings while preserving their presumption of innocence until proven guilty. If an individual commits an offence then he or she is liable to apply for bail. In Indian law, offence is classified based on their bailable nature that is bailable offence and non-bailable offence. Bail is mainly categorized into three types, Regular bail, Interim bail, and Anticipatory bail. In this article, we will discuss anticipatory bail and landmark judgments of the Supreme Court related to anticipatory bail.

Anticipatory Bail

Anticipatory bail is also known as pre-arrest bail which means allowing an accused person to apply for bail before arrest. This concept is applied to ‘in anticipation of arrest’ which means a person has a reason to believe that in the future he or she may be arrested on accusation of committing a non-bailable crime then he or she can apply for anticipatory bail. For instance, a person can apply for anticipatory bail when he/she comes to know that a criminal complaint has been lodged against them and they can get arrested for the same. To safeguard the personal liberty of individuals and prevent misuse of the power of arrest, the concept of anticipatory bail was introduced in India.

Anticipatory Bail: Provision under CrPC

The term ‘anticipatory bail’ is not defined under the Code of Criminal Procedure, 1973, but it allows a person apprehending arrest to apply for bail. Section 438 deals with ‘Direction for grant of bail to person apprehending arrest’. According to this Section, “Where 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

the nature and gravity of the accusation;
the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
the possibility of the applicant to flee from justice; and
where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.”

Gurbaksh Singh Sibbia case

Over the years, the Supreme Court of India has delivered various landmark judgments that have shaped the scope and application of anticipatory bail in India’s criminal justice system. The Gurbaksh Singh Sibbia and others. vs. State of Punjab (April 09, 1980) case is one of the most important judgments of the Supreme Court related to anticipatory bail.

Bench: Justice YV Chandrachud, Justice PN Bhagwati, Justice NL Untwalia, Justice RS Pathak, and Justice O. Chinnappa Reddy.

Supreme Court Decision: In this case, the SC held that an individual must have an appropriate reason to apply for anticipatory bail rather than a mere fear or belief. The five-judge bench observed, “The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that 'some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.”

The SC bench also held that if an application for anticipatory bail is made to the High Court or the Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the CrPC. Further, the top court said that “anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.” The Verdict also clarified that the provisions of Section 438 could not be invoked after the arrest of the accused. It added, “The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”

In this case, the SC bench also illustrated a brief difference between ordinary bail and anticipatory bail. It said “The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.” Overall, The Supreme Court’s decision in this case elaborates the concept of anticipatory bail in an efficient manner which was further considered by the Courts in several judgments regarding bail.

Other Related Case Laws

Savitri Agarwal vs. State of Maharashtra (July 10, 2009)
Siddharam Satlingappa Mhetre vs. State of Maharashtra (December 02, 2010)
Arnesh Kumar vs. State of Bihar & Anr. (July 02, 2014)
Sushila Aggarwal vs. State (NCT of Delhi) (January 29, 2020)

Conclusion

To conclude, anticipatory bail serves as a crucial legal safeguard for those who fear imminent arrest in connection with a non-bailable offence. It allows individuals to seek protection from arrest beforehand, anticipatory bail upholds the principles of justice, fairness, and individual rights within the legal framework. It helps maintain the integrity of the legal system by preventing its misuse or abuse. Overall, anticipatory bail stands as an important mechanism in promoting the rule of law and protecting individual freedoms within society.