DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

2017-2022

DRAFTING OF PLEADINGS AND CONVEYANCING

PROJECT TOPIC: ANTICIPATORY BAIL- Section 438 in The Code Of Criminal

Procedure, 1973

SUBMITTED TO SUBMITTED BY

DR. SHAKUNTALA PRAKHAR CHANDRA

ASSISTANT PROFESSOR(LAW) Roll No. 170101097

SEMESTER-VI

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ACKNOWLEDGEMENT

Nothing in this whole world can be accomplished alone and our piece of work is also not an
exception too, in successful completion of this piece work there has been help and support of
various peoples. We are obliged to our professor Dr. Shashank Shekhar who has given us
golden chance for this research project. We would also like to thank the almighty and our
parents for their moral support and our friends who are always there to extend the helping
hand whenever and wherever required.

We further extend our thanks to library staff and all the administrative authorities of
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped us in
getting all the materials necessary for the project.

PRAKHAR CHANDRA

ENROLL NO. 170101097

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 INTRODUCTION
Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made
against him/her, most commonly due to professional or personal enmity, as it ensures the release of
the falsely accused person even before he/she is arrested.

Under the Code of Criminal Procedure, 1898, there was no provision corresponding to section 438 of
the 1973 Code providing for bail in anticipation of arrest. Anticipatory bail was, however, granted in
certain cases under the High Courts’ inherent powers though the preponderant view negatived the
existence of any such jurisdiction. 1 The Law Commission in its 41st Report recommended the
introduction of a provision in the Code enabling the High Court and the Court of Session to grant
“anticipatory bail”. The Commission viewed that “the necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this tendency is showing signs of steady
increase. Apart from false cases, where there are reasonable grounds for holding that a person accused
of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no
justification to require him first to submit to custody, remain in prison for some days and then apply
for bail.2

The words anticipatory bails are neither found in Section 438 nor in its marginal note. In fact,
anticipatory bail is a misnomer as it is not bail presently granted in anticipation of arrest. When the
court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall
be released on bail unless a person is arrested and, therefore, it is only upon arrest that an order
granting ‘anticipatory bail’ becomes operational. 3 The expression of anticipatory bail is a convenient
mode of conveying that it is possible to apply for bail in anticipation of arrest.

BARE ACT DEFINITION

Nothing by the name Anticipatory bail had been defined in “The Code of Criminal Procedure”, but
the meaning of the term Anticipatory bail can be understood from section 438, which deals about the
procedure of granting bail to a person who is under apprehension of arrest. This section has been
revised. The amending section gives the prosecution maximum opportunity for presenting its case
against the grant of Anticipatory bail.

1
Mangi Lal Vs. State 1952 Cr. L.J. 1425, State of Gujrat v. Govindlal Monilal Shah, AIR1966 Guj. 146, State
Vs. Kailash, AIR 1953, ALL. 98, State Vs. Om Parkash, 1973 2 Cr.L.J. 824 (H&P)
2
Law Commission of India, 41 Report on the Code of Criminal Procedure Vol.I P.311(1969)

3
Balakchand Jain Vs. State of M. P. 1976 4 SCC 572

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6.1 Direction for Grant of Bail to Person Apprehending Arrest under Section 438 Cr. P.C. 4

(1) When any person has reason to believe that he maybe 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; and that Court may, if it thinks fit, direct that in the event of such arrest,
he be released on bail and that court may taking into consideration inter alia following factors namely:
-

i. the nature and gravity of the accusation;

ii. 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;
iii. the possibility of the applicant to free from justice, and
iv. 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.

(1-A) Where the Court grants an interim order under sub-section (I) 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.

(1-B) 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, 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 sub section (1) it may
include such conditions in such directions in the light of the facts of the particular case as it may think
fit, including : -

i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;

ii) 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;
4
Section 438 of The Code of Criminal Procedure (Act II of 1974), substituted by the CrPC (Amendment)Act,
2005 (25 of 2005).

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 iii) a condition that the person shall not leave India without the previous permission of the Court;

iv) 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 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 be issued 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).

WHO CAN APPLY FOR ANTICIPATORY BAIL

A person apprehending arrest under warrant issued by Magistrate for remanding him to custody under
s. 2095 can apply for anticipatory bail under s. 438. 6 Anticipatory bail has nothing to do with filing of
FIR or charge sheet or issue of warrant of arrest; it is only concerned with arrest. If the accused
anticipates that there are chances of him being arrested by the police, he can ask the court regarding
issue of anticipatory bail, and if the court is satisfied the bail will be granted o the applicant.

Where the accused apprehends arrest in view of the fact that a non-bailable warrant has been issued
against him on the basis of charge sheet filed against him, he can apply for anticipatory bail. 7The
discretion of granting anticipatory bail has to be exercised sparingly in appropriate cases, with due
care and caution imposing required conditions.8

When two co-accused have been enlarged on bail the petitioner being similarly placed should be
allowed the benefit of bail.9 Where one co-accused is acquitted, on that ground alone the absconding
co-accused is not entitled to anticipatory bail. 10 Anticipatory bail to an accused should not be refused
merely because other accused has been granted regular bail. 11 A second application for anticipatory
bail is not barred even if the earlier bail application was decided on merits or not permitted or

5
Commitment of case to Court of Session when offence is triable exclusively by it.- When in a case instituted
on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the
Magistrate that the offence is triable exclusively by the Court of Session, he shall-

a) commit the case to the Court of Session;

b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until
the conclusion of, the trial;
c) send to that Court the record of the case and the documents and articles, if any, which are to be
produced in evidence;
d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
6
Natturasu v. State , 1998 CrLJ 1762 (Mad).
7
Bonneswar Dutta, 1998 CrLJ 1383 (1388) (Cal-DB)
8
Narayansingh v. State of M.P., 1996 CrLJ 551 (MP)

9
Sadya v. State of Rajasthan, 1988 (3) Crimes 472 (Raj).
10
Munna Muni Khan v. State of Rajasthan, 1996 CrLJ 831 (Raj
11
State of Kerela v. K.R.Suraj, 2004 CrlJ 1995 (2000) (Ker)

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dismissed for default.12

VALIDITY

Bail granted under this section will be valid and operative for those offences for which it was granted
and such bail bond will continue until it is cancelled. 13Anticipatory bail once granted must be held to
be operative till the conclusion of the trial, or unless it is called off under S. 439 14 of CrPC.15
(Anticipatory bail may be cancelled u/s. 439 (2) if the accused is found to be tampering with
prosecution evidence, or new supervening circumstances arise after the release on bail). 16

But the Supreme Court has held that it is necessary that anticipatory bail order should be of a limited
duration only and ordinarily on the expiry of that duration or extended duration the court granting
anticipatory bail should leave it to the regular Court to deal with the matter on the appreciation of
evidence placed before it after the investigation had made progress or the charge sheet is submitted. 17

The fixation of an outer limit in an anticipatory bail is permissible, but it cannot be invoked after the
arrest of the accused.18

JURISDICTION

As anticipatory bails are granted against arrest and detention, an appropriate court within whose
jurisdiction the arrest takes place or is apprehended will also have jurisdiction to grant bail to the
person concerned. Therefore, the High Court or the Court of Session having jurisdiction over the
place where the arrest is apprehended by the applicant has jurisdiction to entertain application for
anticipatory bail even though the FIR might have been registered at a place within the jurisdiction of
another High Court or Court of Session.19

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
12
Ganesh Raj v. State of Rajasthan, 2005 CrLJ 2086 (Raj –FB).
13
Ramsewak v. State of M.P., 1979 CrLJ 1485
14
According to section 439 (2), A High Court or Court of Session may direct that any person who has
beenreleased on bail under this chapter be arrested and commit him to custody.
15
Natturasu v. State, 1998 CrLJ 1762 (Mad)
16
16 Jairam Tiwari v. State of Bihar, 1987 CrLJ 254 (Pat)
17
Salauddin Abdul Samad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 (668)
18
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632
19
Salauddin Abdul Samad Sheikh v. State of Maharashtra, (1996) 1 SCC 667.

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Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the
Court.

It may be however be noted that though section 438 gives concurrent power to the High Court and the
Court of Session, it is normally to be presumed that the Court of Session would be first approached
for the grant of anticipatory bail unless an adequate case for not approaching the said court has been
made out.20 It has also been held that it is not always necessary that the Sessions Judge should be
approached first.21 Where the Session Court has rejected the petition for anticipatory bail, the
petitioner cannot approach the High Court asking for anticipatory bail on the same grounds. However
revision against the order of rejection was held to be maintainable. 22 The Bombay High Court has
ruled that rejection of an application by the Sessions Court would not be a bar for the High Court to
entertain a similar application based on the same facts. 23 But if he moves the High Court first and his
application is rejected he cannot approach the Sessions Court with a similar application. 24

Normally the Supreme Court does not interfere in the matters concerning grant or refusal of
Anticipatory bail, whether by High Courts or Sessions Court. 25Every petition for anticipatory bail
should be supported by affidavit.26There is no statutory bar in entertaining second anticipatory bail
application. It would be maintainable but it has to be placed before the same Hon’ble Judge. 27

THE COURT WOULD GRANT OR REFUSE ANTICIPATORY BAIL AFTER TAKING

INTO CONSIDERING THE FOLLOWING FACTORS

i. The nature and gravity of the accusation;

ii. 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.

iii. The possibility of the applicant to flee from justice; and

iv. 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 of
the grant of anticipatory bail. This amendment in the section will come into force from the
date of its notification.

NECESSITY OF ANTICIPATORY BAIL

The necessity for granting anticipatory bail has arisen because sometimes influential persons try to
implicate their rivals in false cases for harassment at the hands of the police or for the purpose of
20
Usman v. S.I. of Police, (2003) 2 KLT 594.
21
Balan v. State of Kerala, 2003 (3) KLT 472 (FB).
22
Zubair Ahamed Bhat v. State of J&K, 1990 Cri LJ 103 (J&K HC)
23
Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom. HC).
24
Devidas Raghu Naik v. State of Maharashtra, 1989 Cri LJ 252 (Bom HC)
25
Chakrawarti Prasad v. State of Bihar, 2002 (1) East Cr C 1201 (SC)
26
Prafulla Jena v. State of Orissa, 2000 CrLJ 2681 (2684) (MP)
27
Runu Rey v. State of Assam, 2006 (37) AIC 742 (Gau).

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disgracing them or for any other reason, by getting them detained in jail for some days. In recent
times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.
Apart from false cases, where there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty, while on bail, there seems no
justification to require him first to submit to custody, remain in prison for some days and then apply
for bail.28 Anticipatory bail is not to be exercised as if a punishment before trial is being imposed. The
only material consideration in such a situation is whether the accused would be really available for his
trial and whether he is likely to abuse the discretion granted in his favour by tampering with the
evidence. For mere interrogation arrest of the accused is not all necessary. 29

A CRITIQUE
The facility of anticipatory bail has won a fair legitimacy in the criminal justice system and protection
of personal liberty, but it is not taken gladly by all. According to the contrary opinions, as pointed out
earlier, the inclusion of a provision for anticipatory bail in chapter XXXIII of the Code is bound to
create confusion in the concept of bail, as well as in the application of principles of bail. It would
perhaps be desirable and appropriate to insert such a provision elsewhere. It would even have been
dealt with separately to meet the type of situations referred to under that provision, because the
provision caters to an entirely different class of persons not termed as accused and are not under
arrest.

The system of bail is improvised to curtail, control and abridge the dominion of authority over an
apprehended accused. The mechanism of bail presupposes that the person seeking bail is an accused
who already has been apprehended by police for keeping him in custody to make him appear before
the court at the required time. Once the accused is brought before the court, police has to obtain its
orders for custody of the arrested person. Custody of the accused person can be given either to the
state or to the community. In the first situation, the accused is remanded to police or to judicial
custody as the case may be. Alternatively, he may be released on bail at his request upon his
execution a bond or maybe given in the charge of a third party coming forward as a surety and
furnishing a bail bond. In latter situation the custody of the accused is deemed to have been given to
the self of the accused or to the community. Unlike an accused who is seeking bail, a person by
moving the court for anticipatory bail may not be present before the court. He can ask for bail even in
absentia30 because of a likely apprehension of his arrest. Thus, the constituents of bail are completely
absent in the case of ‘anticipatory bail. Hence custody of a person seeking bail cannot be had either
with the state or the community, which makes the purpose of bail redundant.

The mechanism of bail has been contrived to meet problems of an apprehended accused, in whose
case his interim release is to be secured with an assurance. The assurance has to be that his presence
on an appointed day before the court will be available, so that the court may discharged its obligation
of accomplishing the task to try the accused which is incumbent upon it as the judicial process.
Nothing of the above kind exists when proceedings for anticipatory bail are invoked.

The use of bail mechanism for the purpose intended to be covered by the term anticipatory bail
28
Vide Law Commission’s 41st Report, Vol.I, pp.320, 321, para 39.9
29
Sajjan Kumar v. State, 1991 CrLJ 645, 653 (Del)
30
See. R. L. Anand (ed) Aiyer & Mitter, Law of Bails, 79-81, (1963) 4th ed.

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tantamounts to misuse of the machinery of criminal justice. In fact, the misuse of bail mechanism is a
contraption to cover entirely different situations unrelated to those arising out of the law of arrest,
investigation and trial in a criminal case. Its misuse is bound to affect the smooth working of the
system. The immediate effects are discernible, firstly that the time of a criminal court is exhausted to
consider matters which are yet to crystallise into mature criminal actions. Secondly, by taking
cognizance of such matters and bringing them within the court’s criminal jurisdiction, the authority of
the investigating agency is likely to be hampered, because the probable accused manages to secure a
protective shield in the anticipation of his arrest. This paves the way for interference by the court in
the statutory jurisdiction of the police. The police has statutory power to investigate into a cognizable
offence without requiring any instructions from a judicial authority. The anticipatory bail has a
propensity to interfere with police power and authority. It even threatens to dismantle the utility of the
well established rule laid down by the Privy Council in King Emperor v. Khwaza Nazir Ahmad: 31

Just as it is essential that every one accused of a crime should have free access to a court of justice so
that he may be duly acquitted if found no guilty of the offence with which he is charged, so it is of the
utmost importance that the judiciary should not interfere with the police in matters which are within
their province and into which the law imposes on them the duty to inquire. 32

The Privy Council noted that in India there is a statutory right on the part of the police to investigate
the circumstance of an alleged cognizable crime without requiring authority from judicial authorities
and observed that, it would be an unfortunate result if it should be held possible to interfere with those
statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary
and the police are complementary and the combination of individual liberty with a due observance of
law and order is only to be obtained by leaving each to exercise its own function. 33

Since the concept of anticipatory bail is intended to be

a fallout of the value of personal liberty, an
added consequence would be to push the co-equal value of security and stability to the sidelines. The
provision is thus legal anomaly in relation to the established legal concept of bail. It is a provision
more readily available to the affluent but it is definitely prejudicial to the interests of the
administration of the bail process in the administration of criminal justice system. 34

In spite of the given reservations about the anticipatory bail, there exists another stream of thought,
according to which it can be safely observed that the anticipatory bail mechanism is a necessity.
Without it numerous persons may be made to suffer in custody just on account of some suspicion or a
false charge. The experience of courts in evolving useful precedents in matters of anticipatory bail
must not be undervalued.

CONCLUSION
The power of anticipatory bail has to be exercised cautiously and only in exceptional cases, that is,
where the Courts strongly feel that the applicant is being framed in the charge, and not other wise. An

31
L.R. 71 IA. 203 (1943)
32
Id. at 204
33
Ibid
34
See further 154th Report of the Law Commission of India on Cr.P.C. (1996).

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indirect use of the power to grant bail would be an abuse of the judicial process and would shake the
confidence of the general public in the judiciary. No hard and fast rule should be laid down in
discretionary matters like the grant or refusal, nor can there be inflexible principle governing the
exercise or discretion except that discretion should be exercised judiciously having regard to peculiar
facts and circumstances of each case.

The Court is not expected to conduct a pre-trial of the case and consider the probability of guilt or
innocence, but can certainly look into the material available on record for exercise of its power. The
fact that offence is a serious one is not by itself a good ground for refusal, if otherwise entitled to. 35

Anticipatory bail should not be granted as a matter of rule; it has to be granted only in special cases.

35
R.L.Jalappa v. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant).

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