Indian law allows for a unique procedure of anticipatory bail under Section 438 of the Cr.P.C. Persons apprehending arrest in a “non-bailable” case can move a Sessions Court or the High Court under Section 438, requesting a court order that directs the police to release them on bail in the event it seeks to arrest that individual. Please note that whilst parliament passed certain amendments to Section 438, that can be found in many versions of the Cr.P.C. distributed by commercial publishers, these are yet to be notified and are not law in force as of today.
The Petitioner had approached the Supreme Court seeking anticipatory bail in relation to a case registered against him under Section 498-A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. Not only did the Court allow the petition, it also took the opportunity to condemn arrests more generally. It was of the opinion that unjustified arrests by police were rampant in the legal system [Paragraphs 5-6]. In an effort to curb this practice, the Court issued directions which, inter alia, provide that police do not automatically arrest a person when a case is registered for offences punishable up to seven years and instead issue a notice of appearance under Section 41-A, Cr.P.C. The directions also require the police to provide written justifications for an arrest and to fill up a check-list as per terms of Section 41(1)(b)(ii), Cr.P.C. [Paragraphs 11-12].
Siddharth Varadarajan v. State of U.P. & Anr., [(2020) 111 ACC 768] (Allahabad High Court, Single Judge)
The High Court allowed the Petitioner’s application for anticipatory bail, outlining the circumstances and stages at which a person may apprehend arrest and thus approach a court under Section 438 Cr.P.C. The Petitioner had been served with notices under Section 41A Cr.P.C. pursuant to an FIR, and he submitted that he had sufficient apprehension of arrest due to the police’s conduct in visiting his house etc.
The High Court held that:
39… The apprehension of arrest for a non bailable offence, one can have at different stages, namely:—
(a) during the period of investigation by the police after registration of F.I.R. and before filing of the final report under Section 173 Cr.P.C.;
(b) during further investigation under Section 173(8), Cr.P.C. even after filing of the charge sheet under Section 173 Cr.P.C.;
(c) after taking cognizance by the Magistrate, summoning the accused under Section 204 Cr.P.C. through warrant;
(d) while the Magistrate committing the Sessions case to the Court of Session under Section 209 Cr.P.C. and remanding the accused to custody;
The High Court further held that even during the investigation, there may be apprehension of arrest prior to registration of FIR (para 43)
Shivam v. State of Uttar Pradesh & Anr. (Crl. Misc. 2110/2021, judgment dated 05.04.2021) (Allahabad High Court, Single Judge)
The accused sought anticipatory bail at a post-cognizance stage in an FIR registered under various provisions of the IPC as well as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. While rejecting the bail on merits, the High Court laid down guidelines for appropriate cases where anticipatory bail can be granted post-cognizance, cases where it cannot and the particulars to be supplied by the accused while filing for anticipatory bail post-cognizance. The Court held that appropriate cases for grant of anticipatory bail post-cognizance are those that fulfil parameters for quashing under Section 482 Cr.P.C. as well a few more cases (para 40).
Excerpts of the High Court’s guidelines are as follows:
41. The following can be considered as “appropriate cases” for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court:
1)… where the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court;
2) Where there exists a civil remedy and resort has been made to criminal remedy….
3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in near proximity of time…
4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;
5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;
6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;
7) Where charge-sheet has been submitted/complaint has been filed but on account of some legal defect, like want of sanction, filing of complaint/F.I.R by legally incompetent authority, it cannot proceed;
8) Where the allegation in the F.I.R/complaint do not constitute cognizable offence but constitute only a non cognizable offence and investigation has been done by police without order of Magistrate u/s 155(2) Cr.P.C;
9) Where the part of charge in the charge-sheet regarding major offence alleged is not found to be proved and only minor offence has been found to be proved by the Investigating Officer…
10) Where the investigation has been conducted by the Investigating Officer but the statements of the accused persons have not been recorded by the Investigating Officer and the charge-sheet has been submitted only by relying upon the witnesses of the prosecution side….
11) Where there is statutory bar regarding filing of F.I.R and only a complaint can be filed, a charge-sheet submitted against an accused in such cases would entitle him to apply for anticipatory bail after submission of chargesheet by the Investigating Officer.
The High Court further clarified that its guidelines are not exhaustive or inflexible (para 42). It laid down examples of cases where anticipatory bail cannot be granted after submission of charge-sheet (para 43) and detailed particulars to be furnished by accused persons in anticipatory bail applications post-chargesheet (para 45).
Manish Jain v. Haryana State Pollution Control Board [SLP (Crl.) No. 5385/2020, order dated 20.11.2020] (Supreme Court of India, 2-Judge bench)
The petitioner sought anticipatory bail pursuant to the cancellation of his regular bail. The Supreme Court held that a person released on bail is already in the constructive custody of the law. The Court held that an application for anticipatory bail will not lie, as there cannot be an apprehension of arrest by a person already in the constructive custody of the law.
Gurbaksh Singh Sibbia & Ors. v. State of Punjab, 1980 (2) SCC 565 [Supreme Court of India, 5 Judge Bench]
A Constitution Bench of the Supreme Court construed the meaning of Section 438 for the first time in this batch of appeals. The lead petition was that of Gurbaksh Singh Sibbia, a Minister in the Government of Punjab alleged to have engaged in corruption, whose anticipatory bail application had been dismissed by the Punjab & Haryana High Court. The Court referred to the Law Commission’s Report [Paragraphs 4-6] and noted that the possibility of motivated arrests, and the social stigma that followed an arrest, justified a need for anticipatory bail [Paragraphs 7-8]. The Court rejected the view that the provisions controlling regular bail in the Cr.P.C. also control judicial discretion to grant anticipatory bail [Paragraphs 12, 18]. While this did not mean that anticipatory bail came with no conditions at all, the Court stressed upon the need for securing broad judicial discretion to decide such applications and rejected engrafting rules / conditions not present in the text of Section 438 that would curb judicial discretion [Paragraphs 13-15, 21, 26, 33]. Thus, for instance, the Supreme Court rejected a view that anticipatory bail was only available if allegations were made in bad faith [Paragraph 31].
More specifically, the Supreme Court clarified that: (i) “apprehension” of arrest did not require registration of an FIR as a prerequisite but still had to be reasonable; (ii) the registration of an FIR did not act as a bar to filing for anticipatory bail; (iii) any order for anticipatory bail was limited to the allegations in question, and was not a blanket order granting bail to a person “whenever arrested for whichever offence whatsoever”; (iv) the court could grant ad interim reliefs without notice being issued to a prosecutor, but only for a short period of time, and; (v) a person could be temporarily taken into custody for securing recoveries even if anticipatory bail had been granted [Paragraphs 35-42].
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., 2011 (1) SCC 694 [Supreme Court of India, 2 Judge Bench]
The Appellant, a political person, was alleged to have instigated his supporters to attack and kill members of a rival faction and sought anticipatory bail, and the Supreme Court allowed the petition. The Court’s opinion carries a long exposition on the importance of personal liberty [Paragraphs 36-67], and stressed upon the seriousness of arrest and abuse of this power by police [Paragraphs 86—90]. On the legal issues, it reiterated the position affirming broad judicial discretion as explained by Gurbaksh Singh Sibbia (supra) [summarised at Paragraph 109]. It went ahead to list ten illustrative factors required to be considered while deciding anticipatory bails: [Paragraph 112]
- The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
- 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 offence;
- The possibility of the applicant to flee from justice;
The possibility of the accused’s likelihood to repeat similar or the other offences.
- Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
- Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
- 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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
- 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 prevention of harassment, humiliation and unjustified detention of the accused;
- The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
- 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.
One issue specifically considered by the Court was whether anticipatory bail orders had to be time-bound, and that a person must surrender to custody upon expiry of this period and seek regular bail. The Court held that such a condition limiting the life of an order was illegal and against the intent behind Section 438 [Paragraphs 98—108, 123].
The appellant sought anticipatory bail in a case involving the unnatural death of his wife. The Supreme Court rejected his plea. Specifically, it noted that the appellant had not made himself available to police for questioning and had been declared an “Absconder”. The Court held that “normally when the accused is ‘absconding and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail.” It categorically stated that a person who is declared a proclaimed offender is not entitled to relief: “a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid the execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”
Sushila Agarwal & Ors. v. State (NCT of Delhi) & Anr., AIR 2020 SC 831 [Supreme Court of India, 5 Judge Bench]
Two issues were referred to a Constitution Bench of the Supreme Court: (i) whether the view taken in Mhetre (supra) was correct, i.e.: whether anticipatory bail was time-bound and upon its expiry a person had to surrender herself to custody and seek regular bail, and; (ii) whether anticipatory bail was necessarily limited till completion of investigation and expired when an accused was summoned to face trial. The Court unanimously held that the view taken in Mhetre was correct. It also held that the anticipatory bail order did not expire automatically at the close of an investigation. It held that limits on the duration of anticipatory bail orders could be placed if the facts and circumstances justified the same [Paragraph 132]. The Court went ahead to offer certain guiding principles for deciding anticipatory bails: [Paragraph 133]
- As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable to a specific offence or particular of offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court while considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
- The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
- Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437(3), Cr. PC [by virtue of Section 438(2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
- Courts ought to be generally guided by the considerations such nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while assessing whether to grant anticipatory bail, or refusing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
- Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
- Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.
- The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such an event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya.
- It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court – in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
- The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See, Prakash Kadam v. Ramprasad Vishwanath Gupta; Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi). This does not amount to “cancellation” in terms of Section 439(2), Cr. PC.
- The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.