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Anticipatory Bail: Section 438 CrPc
The term Anticipatory Bail Application (ABA) is nowhere defined in the Criminal Procedure Code, 1973 (Cr. P.C), however the first mention of the said term can be seen in the 41st Law Commission Report, 1969 (the report) where the commission felt the need to include a provision for protecting an accused or any person who is apprehending or having a belief that he/she may be arrested for any offence which is Non-Bail able in nature.Taking into consideration the said report and the grave need of the hour, the Parliament while enacting the 1973 Act, added a provision for Pre-Arrest bail under Section 438 with a heading "Direction for grant of bail to person apprehending arrest".Bail is essentially freedom from the restriction on the liberty of an accused. It is a temporary release of a person on some security of his appearance. Presumption of the innocence of an accused until proven guilty is a fundamental canon of criminal jurisprudence. The provisions of bail in the Criminal Procedure Code, 1973 (Cr. P. C) provides substance to this principle by creating a balance between the personal liberty of an accused and the interest of society.
Anticipatory Bail refers to the grant of bail in anticipation of arrest.
The concept of Anticipatory Bail gained momentum when the tendency to falsely implicate an individual in order to injure their reputation was recognized. There was a rise in instances, where reputed individuals were falsely implicated by their political rivals, in order to humiliate and harass them by getting them arrested. Personal liberty of an individual is a valued facet of his right to life and must not be put in jeopardy.
Besides this, there are instances where an accused is not likely to abscond to avoid trial, does not have criminal antecedents and is not likely to tamper with evidence. The need for protecting the liberty of such men gave birth to the concept of pre-arrest bail. The essence of anticipatory bail is well encapsulated in the words of Y.V. Chandrachud C.J, who observed as:
�A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom so to give full play to the presumption that he is innocent.�The Law Commission in its 41st report observed:
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in a false case for the purpose of disgracing them or for the purpose of getting them detained in jail for some days�.The Supreme Court (SC) in Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial. The Court made reference of India�s freedom movement claiming that arbitrary arrests, indefinite detentions, and lack of institutional safeguards played an important role in rallying the people to raise the demand for Independence.
Further, the need for such provision arose because now and then prominent persons try to accuse their rivals in false cases to disgrace them by getting them held in jail for some days. Also if there are reasonable grounds that a person accused of an offence has fewer chances of absconding or misusing his liberty while he is on bail then it will not be logical to make him first submit to custody, remain in prison for some days, and then apply for bail.The Parliament considered the recommendation and while enacting the 1973 Act, added the provision of granting bail to a person apprehending arrest under Section 438. The intention of the legislators was not to make anticipatory bail a "blanket protection " thus, it cannot operate in respect of an offence committed in the future and does not permit the accused to commit further offences and claim relief from arrest.Further, the provisions of Section 438 cannot be invoked after the accused has been arrested and after arrest, if he is to be released on bail then he must seek remedy under Section 437 or 439 Cr.P.C. In the case of Bal Chander Jain vs. State of M.P, it was held that "Anticipatory bail" means "bail in anticipation of arrest" and when a competent court grants anticipatory bail, an order of releasing a person at the time of arrest is granted.In M.P. & Anr. vs. Ram Kishan Balothia and Anr, the Apex Court held that Anticipatory bail was not there as a statutory right before 1973. Therefore, it cannot be considered a fundamental right under Article 21 of the Constitution of India.
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