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Explained: What is anticipatory bail, for which SC has removed time limits?

The protection granted under Section 438 of the Code of Criminal Procedure (CrPc) "should not invariably be limited to a fixed period”, a five-judge Constitution bench headed by Justice Arun Mishra had said.

By: Explained Desk | New Delhi |
January 31, 2020 12:48:11 pm
Explained: What is anticipatory bail over which SC has removed time limits? The Supreme Court of India. (Express Photo: Praveen Khanna)

The Supreme Court Wednesday ruled that no time restriction should ordinarily be fixed for anticipatory bail and that it can continue even until the end of the trial.

The protection granted under Section 438 of the Code of Criminal Procedure (CrPc) “should not invariably be limited to a fixed period”, a five-judge Constitution bench headed by Justice Arun Mishra said, deciding a reference made to it following “conflicting views” of some other benches of the court.

Explained: What is anticipatory bail?

Black’s Law Dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”

In the 1973 case Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry, the Calcutta High Court explained the principle behind giving bail: “The law of bails… has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.”

As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.

S. 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail. Sub-section (1) of the provision reads: “When any person has reason to believe that he may be 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 shall be released on bail.”

The provision empowers only the Sessions Court and High Court to grant anticipatory bail.

Rationale behind anticipatory bail

Anticipatory bail became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898), after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.

The report said, “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… 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.”

In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

It also observed, “It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character… But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extra-ordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.”

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Conditions while granting anticipatory bail

While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2).

S. 438(2) reads: “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;

(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.”

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