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Parameters of Anticipatory Bail: Apex Court

When any person apprehends that police is going to arrest him/her on

false or motivated charges then before arrest he has the right to move the

court of Session or the High Court under section 438 of the code of

Criminal Procedure for grant of bail in the event of his arrest, and the court

may, if it thinks fit, direct that in the event of such arrest, he shall be

released on bail and anticipatory bail can be granted by Sessions Court

and High Court.

The provision of anticipatory bail has many dimensions but in practical, a

large number of undertrials are languishing in jail for a long time even for

allegedly committing very minor offences because section 438 Cr.P.C.

has not been allowed its full play. However, scope of power under section

438 CrPC was dealt in detail by Hon’ble Supreme Court Constitution

Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2

SCC565] where scope of judicial discretion in the matter of anticipatory

bail and its importance was emphasized by the bench courts in general

used to erroneously invoke such power only in exceptional or rare cases.

No general guidelines has been laid down by Hon’ble Supreme Court for

invoking power under section 438 CrPC for releasing accused but it has
been held in various cases to consider below factors before granting

benefit of bail to accused.

It all depends upon whether there is any prima facie or reasonable ground

to believe that the accused had committed the offence; nature of

allegations- Severity/gravity of the allegations or severity of the

punishment in the event of conviction; further chances of the accused

absconding from the processes of law or whether the accused has roots

in the society; whether habitual offender; chances of the accused creating

hurdles in the fair investigation or the trial; chance of witness or evidence

tampered; case required custodial interrogation. Another fact about

likelihood of the offence being repeated; nature of evidence, which has

been gathered by the investigating agency and if the offence is proved the

maximum sentence, which it may entail and last but not least about

frivolity in prosecution should always be considered.

It was held by Apex Court in Maneka Gandhi v. Union of India, (1978) 1

SCC 248, that in order to meet the challenge of Article 21 of the

Constitution, the procedure established by law for depriving a person of

his liberty must be fair, just and reasonable. That Constitution Bench of

Honourable Apex Court in the case of Gurbaksh Singh Sibbia and Others
v. State of Punjab -(1980) 2 SCC 565 emphasized that provision of

anticipatory bail enshrined in Section 438 of the Code is conceptualised

under Article 21 of the Constitution which relates to personal liberty.

Therefore, such a provision calls for liberal interpretation of Section 438

of the Code in light of Article 21 of the Constitution.

The proper course of action ought to be that after evaluating the

averments and accusation available on the record if the court is inclined

to grant anticipatory bail then an interim bail be granted and notice be

issued to the public prosecutor and after hearing the public prosecutor the

court may either reject the bail application or confirm the initial order of

granting bail. During this, the court would certainly be entitled to impose

conditions for the grant of bail and public prosecutor or complainant would

be at liberty to move the same court for cancellation or modifying the

conditions of bail any time if liberty granted by the court is misused.

In case of refusal of Anticipatory bail by Session Court then petition before

High Court lies and in case both courts reject the petition for anticipatory

bail, then against the rejection order by Hon’ble High Court, the remedy

lies by filing Special leave petition under Article 136 of Constitution of India

before Apex Court. Recent decision of the Supreme Court in the case of
P Chidambaram v. Directorate of Enforcement yet again gives rise to the

extensive debate between custodial interrogation and anticipatory bail.

The most comprehensive analysis of the nature and scope of Section 438

is contained in the Constitution Bench judgment of Gurbaksh Singh Sibbia

(supra). This decision emphasises that Section 438 has to be interpreted

that principle of presumption of innocence in favour of the accused and

power exercised under Section 438 cannot be interpreted in a manner that

creates fetters or unnecessary restrictions. It is common knowledge that

custodial interrogation is the weapon wielded by investigating agencies to

secure clinching evidence against an accused. On the other hand,

anticipatory bail is the shield deployed by an accused to avoid the

inclemency of arrest and custody. In short, anticipatory bail is an important

shield given to innocent to protect themselves from false and motivated

cases to protect their personal liberty as setforth under Article 21 of

Constitution of India.