Anticipatory Bail Laws in India

The Concept of Bail

Section 2 (a) of CrPC defines bailable offense as “an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and ―non-bailable offense means any other offense.” Bail has not been defined under any law, and the standard definition of the term means, “to temporarily release (a prisoner) in exchange for security given for appearance at a later hearing.” The concept of the bail has been based on two conflicting concerns- an individual’s right to liberty and his right to be presumed innocent until proven guilty against the society’s interest in maintaining law, order, and security. The Court in Morit Malhotra v State of Rajasthan [1] held that it was not necessary for an accused who had been granted bail by police, to approach the court again to get bail as the power of granting bail under CrPc is given to both the police as well as the court.

The principle behind the concept of Bail

In Prahlad Singh Bhati v NCT, Delhi, [2] the principles which a court must take into consideration while granting bail has been considered by the Supreme Court, and the Hon’ble court laid down that:
“The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

Types of Bail

Regular bail
Anticipatory Bail.

Anticipatory Bail

Anticipatory bail means bail taken when there exists anticipation of an arrest. An individual who has an apprehension of arrest under a non-bailable offense can apply for anticipatory bail under Section 438 of CrPC. Ordinary bail is granted after the arrest, while anticipatory bail is granted in anticipation of arrest.
Section 438 of the Code states that an application for anticipatory bail has to be filed either to High Court or the Court of Session for a direction that in the event of the arrest of the individual, he shall be released on bail. This provision applies to all non-bailable offenses and is not confined to offenses triable exclusively by the Court of Session.

The two reasons that justify the need for anticipatory bail are:
1. That there would be a free and full investigation of the case
2. And accused must not be harassed by this unjustified detention.

Section 438(2)(i) of the CrPC is unambiguous that the Court while granting anticipatory bail can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. This provision exists to prevent abuse of anticipatory bail.

Parameters for granting Anticipatory Bail

In Section 438, the use of the expression ‘reason to believe’ of the Code shows that there exist a belief that the applicant may be arrested and the apprehension of arrest must be founded on reasonable grounds. Mere ‘fear’ is not a ‘belief’.
‘Reason to believe’ asserts an obligation to the existence of objective material that creates an apprehension of arrest in an individual and such an objective material must be examined by the court while granting anticipatory bail.

The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr [3] after analyzing the entire law has observed as under:-
“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before an arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offense;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused’s likelihood to repeat similar or other offenses;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, 1860 the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors. Namely, no prejudice should be caused to the free, fair and full investigation, and there should be the prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) 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.”