Anticipatory Bail

The Code of Criminal Procedure, 1973 [CrPC] has a provision, which confers on the Court of Session & the High Court the power to grant anticipatory bail. The Petitioner can move the Court/ High Court if he has a `reason to believe’ that he may be arrested on accusation of having committed a non-bailable offence. The S-438 of the CrPC envisages the provisions for Anticipatory Bail.

Where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that Court, the Court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within its jurisdiction. The Court has to record its satisfaction that there is not any camouflage or façade to evade the process of law.

Grant of anticipatory bail under Section 438 Cr.PC is however a matter of a judicial discretion. We have numerous Judgments and Orders, passed by High Courts all over India and by the Hon’ble Supreme Court Of India, granting, as also rejecting the Bail and Anticipatory Bail Applications. In the light of the directions passed by the Apex Court from time to time, parameters to be considered by the Courts for grant of anticipatory bail in India are:

[Vital Parameters/Considerations For Anticipatory Bail]

Whether there is any prima facie or reasonable ground to believe that the accused had or had not committed the offence;
Whether the accusation has been made with the object of injuring or humiliating the Petitioner by having him so arrested.
Whether a fit case for custodial interrogation.
Whether the Petitioner has joined the investigation or is prepared to join the same.
All other considerations applicable in the Case of a regular Bail.

Law Commission -July, 2012 report On Bail/ Anticipatory Bail:

The Law Commission severely criticized the police of our country for arbitrary use of power to arrest, raising following substantial questions of law:

(i) Bail, not jail, is the rule. Arrest should be the option, and it should be restricted to those cases where arresting the accused is imperative in the facts and circumstances of the case and based on the available material- substantiality of the accusation & evidence.

(ii) S-438 (1), got to be interpreted in the light of Art.21.- Entitlement of Police to arrest is different from justification of arrest.- While granting bail balance has to be struck between two factors, the right of Police to conduct investigations and right of the Accused. On the one hand, no prejudice should be caused to the free and fair investigation and on the other, there should be prevention of harassment, humiliation, and unjustified detention of the accused.

(iii) There is no straight jacket formula for granting or rejection of Bail Applications, The Powers of granting Bail, being discretionary, have to be exercised/ applied in the light of the circumstances of each Case, as each case depends upon its own facts and circumstances.

(iv) Frivolity in prosecution- In the event of there being some doubt to the genuineness of the, the accused is entitled for bail

(v) The Courts to consider the following factors on the touchstone of reasonableness, the factors namely: (a) the apprehensions of tempering witnesses; or (b) apprehension of threat to the Complainant; or (c) post Arrest Factors, namely: (i) flee from justice (ii) tempering with the witnesses (iii) repeat of the offence, etc.

Citing the Judgments and Orders, passed by the superior Courts, the aggrieved husbands and their relatives are entitled to move the concerned Courts for seeking Anticipatory Bail. For convenience sake, we have divided the subject in hand in the following categories:

Courts & Fora

[In Hierarchical Order]

Supreme Court Of India
High Courts Of Various States
District & Sessions Judge [D&SJ]
Metropolitan Magistrates [MM]
Judicial Magistrates [JM]
Mediators & Concilliators

Governing Legal Provisions

The Code of Criminal Procedure, 1973

Section- 438. Direction for grant of bail to person apprehending arrest.– (1) Where any person has reason to believe that he may be arrested on 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 in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-

a condition that the person shall make himself available for interrogation by a police officer as and when required;
a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
a condition that the person shall not leave India without the previous permission of the Court;
such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

Anticipatory Bail Judgments U/S-438 Of The Code Of Criminal Procedure, 1973

498A- IPC

Citation Of Judgments On Anticipatory Bail On 498A IPC

Abdulla Vs. State (Govt Of NCT Of Delhi), Bail Appln. No. 72/2015, Decided On 30-01-2015., Bench: Manmohan Singh, J, Delhi High Court- Anticipatory Bail- Proclaimed offender not entitled to the relief of Anticipatory Bail [Full PDF Judgment].
Arnesh Kumar Vs. State Of Bihar– SC-02.07.2014- Criminal Appeal No. 1277 OF 2014- (2014) 8 SCC 273- Anticipatory Bail- U/S-438 CrPC- Offence- IPC-S-498A- S-4 of the Dowry Prohibition Act, 1961- No Arrest Guidelines Issued [Full PDF Judgments].
Gurbaksh Singh Sibbia & Ors., Vs. State of Punjab– SC-09.04.1980- Criminal Appeals Nos.335 Of 1978- (1980) 2 SCC 565=1980 AIR 1632- Anticipatory Bail- Judicial Balancing of Personal Liberty of the accused and the Investigational Powers [Full PDF Judgment– Five Judge Constitution Bench].
Honey Preet Insan Vs. State [of Delhi]– Delhi High Court-26.09.2017- Bail Application No.-1983 of 2017- Anticipatory Bail- Whenever, an application for anticipatory bail is made before a Court, where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that Court, the Court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. If the Court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case [Full PDF Judgment].
X (Changed name) Vs. State & Anr., CRL.M.C.2120/2015 & CRL.M.A.No.1567/2016, Judgment Dated: 04.03.2016, Bench: S.P.GARG, J, DelHC- Anticipatory Bail- Sexual harassment Case- Held, “16. Petitioner’s counsel has failed to impress as to for what purpose, custodial interrogation of the Petitioner is required. While granting anticipatory bail to the Petitioner, safeguarding the Petitioner’s interest and that of the Investigating Agency, stringent conditions have already been imposed upon the accused. This Court finds no manifest error in the matter of grant of bail by the Trial Court. “- Cancellation Of Bail [Full PDF Judgment].

Related Links

Format Anticipatory Bail Petition- District & Sessions Judge
Format Anticipatory Bail Petition- High Court
Related Legal provisions– S-438 Cr.P.C.

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