Fundamental Rights ensure that liberty is protected by state, however under criminal jurisprudence especially bail matters, an individual’s personal liberty are directly touched upon. It is abundantly clear that the law of bail is to strike a balance between an individual’s right to liberty and also the need of society to maintain peace and order. The Courts typically have to balance out the need to restrain individuals who are capable of committing crime and also at the same time, an individual’s liberty so far as presumption of innocence, until proven guilty is concerned.
‘Pre-arrest bail’ as a concept was introduced in Criminal Procedure Code of 1973 which intended to avoid the harassment and humiliation meted out due to arrest or detention. This pre-arrest bail came to be known as ‘anticipatory bail’ under Section 438 of Cr.P.C. The object of ‘anticipatory bail’ is that a moment a person is arrested; he shall be released immediately on bail without being sent to jail.
The Supreme Court in Balchand Jain vs. State of M.P.[1]has stated that, ‘the expression ‘anticipatory bail’ is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the court grants ‘anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail.’ Once a person moves to the Court on apprehension of arrest in a non-bailable offence, the Court then has to evaluate the averments and accusations available on record and satisfy itself with whether the apprehension of arrest exists or not. Typically the Court gives an interim bail and issues notice to the Public Prosecutor. At the time of final hearing, the Court may then either reject or confirm the bail. In the event that the applicant misuses the liberty granted by the court, then the complaint or the public prosecutor can approach the court for cancellation or modification of bail.
A person has to satisfy two requirements before moving an application. First, there must be an accusation of him having committed a non- bailable offence and secondly, existence of reasonable belief that he may be arrested. In terms of jurisdiction, Sec. 438 contemplates two forums for moving an application for anticipatory bail, namely the High Court and the Sessions Court. Both have concurrent jurisdiction to entertain an application for anticipatory bail. Although the High Courts have generally held that Sessions Court should be approached first. It has been observed by various High Courts in catena of judgments that High Court cannot entertain Sec. 438 applications as a matter of routine without examining whether there are any special reasons to entertain said application.
A bare reading of Sec. 438 shows that it has not put any embargo to approach the Sessions Court first. However, as a matter of practice, Court of Session should be approached first for grant of anticipatory bail. There has been much discussion on the territorial jurisdiction and various High Courts have said that it can still grant anticipatory bail for a short term, till such time that the individual appears before the appropriate court having territorial jurisdiction. While other High Courts have held that territorial jurisdiction of the Sessions Court or the High Court should be invoked, where the case has been registered.
One of the earliest case of the Constitution Bench on the subject of Anticipatory Bail has been Gurbaksh Singh Sibbia vs. State of Punjab[2] where the Constitution Bench of Hon’ble Supreme Court had elaborated on the legislative intent and the conferring of wide discretionary power to both High Court and Session Court in the matters of anticipatory bail. The Bench also held that there is no potential of taking away from the investigating agency, the power to conduct investigation in full and effective manner. In Balchand Jain vs. State of M.P.[3] it was observed that Sec. 438 of the Code is an extraordinary remedy and should be resorted to only in special cases.
The Constitution Bench also explained issues to be borne in mind at the time of granting of anticipatory bail:
1. Section 438 is applicable to all non-bailable offences.
2. Registration of case is not condition precedent to invoke jurisdiction under Section 438.
3. Sec.438 cannot be read to confer power on Court to pass ‘blanket order’ of anticipatory bail.
4. Also, as far as duration of an order under Sec. 438 is concerned, it is not necessarily limited to any point of time. Although this point has been better explained in Salauddin Abdulsamad Shaikh vs. State of Maharashtra[4] where it was held that the ‘duration of an order u/s 438 should be limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence.’
Finally in Siddharam Satlingappa Mhetre v. State of Maharasthra[5] , the Supreme Court laid down some firm guidelines to be followed while entertaining application under section 438. It clearly held that Courts should not restrict the ambit and scope of Section 438 which are not envisaged by Legislature. The Court laid down few important parameters like nature and gravity of the accusation and exact role of accused must be comprehended before arrest is made, criminal antecedents of the accused, flight risk, possibility of repeat offence. Also where it appears that the object of arresting is only to humiliate the applicant, prevention of unjustified detention and also reasonable apprehension of tampering of witness or threat to complainant.
Very recently in Bhadresh Bipinbhai Sheth vs. State of Gujarat[6], observation with respect to careful examination of complaint, tendency of complainant with respect to filing of false and frivolous complaints and the repercussions that they may have as a result of filing false case. Further, it observed that there was no requirement to make out a ‘special case’ for exercise of power of anticipatory bail. A person seeking anticipatory bail is still a free man entitled to presumption of innocence. Proper procedure would entail that an interim bail is granted while notice is issued to Public Prosecutor.
There are however, arguments against the provision of anticipatory bail specifically relating to the denial to the police officer of custodial interrogation and therefore, lack of full investigation. However in a society where arrest process is highly abused and jails are filled with under trials, pre-arrest bail should be given a liberal interpretation.
