Anticipatory bail is a pre-arrest legal process. If a person has apprehension of arrest for a non-bailable offence, he may invoke Anticipatory Bail
under section 438 of CrPC. The word Anticipatory is no where define in the CrPC or any other code. Having the apprehension of arrest the person can get the bail before the arrest under section 483. The fundament difference between the regular bail and bail under 438 is that the former is granted only after arrest but the latter is granted before arrest and hence is operative from the moment of arrest.
Any person has a reason to believe that he may be arrested in non-bailable offence, he may apply before Session Court or in High Court that he shall be protected from the arrest and released on bail if he may be arrested.
The court may consider the following factor while allowing the anticipatory bail:
- Whether he has any criminal antecedents or criminal history,
- Nature of the offence and its gravity,
- The possibility or chance of the applicant to flee from justice,
- Where the accusation has been made with object injuring or humiliating the applicant by having him so arrested.
The provision under section 438 of CrPC is only invoked or applicable when any person has an apprehension of arrest without warrant in cognizable offence.
It is given in those circumstances when the court believes that there is a possibility that the accused has been falsely implicated and that his freedom will not hamper the investigation of the crime. The bail granted under section 438 may be cancelled at any time if the investigation is hampered or if a condition under the order is violated by the arrested person.
Recourse after the granting of anticipatory bail:
The order of anticipatory bail is misused by the applicant. It is generally believed that if anticipatory bail is granted, the applicant will misuse his liberty and will not be available for his trial or will try to tamper with the evidence or will threaten the witnesses, so on and so forth. The recourse regarding such situation is provided by in CrPC itself i.e. the remedy of filing an application for cancellation of bail, granted to the accused. It’s not like there is nothing that prosecution or complainant can do in case anticipatory bail is misused by the accused. In fact section 439(2) in its clear terms stipulates that a High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. This provision clearly and categorically stipulates that High Court or Court of Session have the power to commit any person, released on bail, to the custody again.
Here are some Landmark Judgments:
- Balchand Jain Vs. State of M.P.,
As observed in `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.
Here is one important point to be kept in mind with regard to anticipatory bail:
The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
Siddharam Satlingappa Mhetre v. State of Maharastra [(2011) 1 SCC 694] held several guidelines including the following:-
“113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record”.
“116. Personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
In Arnesh Kumar Vs. State of Bihar [(2014) 8 SCC 273], judgment was preferred out from the appeal filed by the husband who had an apprehension to arrest under section 498 A of IPC and section 4 of the Dowry Prohibition Act. While dealing with the case, the Court thought it fit to record the rampant abuse of 498-A of the Indian Penal Code, 1860 .
The court while dealing with the case also observed and recorded that the recently in our society in matriamonial disputes section 498-A of IPC is misusing by the wife and her family members to harass. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. While observing this, court issued certain guidelines/directions. The Notice of appearance in section 41A of CrPC be served within 2 weeks from the date of institution of the case in such type of case when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
Hence Anticipatory bail is the provision under 438 concern with personal liberty. If person has an apprehension to get arrested in non-bailable offence he can file anticipatory bail by satisfying court that he is innocent and will join the investigation and cooperate with IO of the case.
