1. Which provision of law deals with anticipatory bail?
Section 482(1) of Bharatiya Nagarik Suraksha Sanhita 2023 reads as follows: 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.
2. Did earlier codes have the provision to seek anticipatory bail?
Section 482 BNSS is pari materia with Section 438 of the Code of Criminal Procedure,1973. Under the 1898 Code, the concept of anticipatory or pre-arrest bail was absent and the need for introduction of a new provision in the CrPC empowering the High Court and Court of Session to grant anticipatory bail was pointed out by the 41st Law Commission of India in its report dated September 24, 1969.
3. What is anticipatory bail?
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. It is not as if bail is presently granted by the Court in anticipation of arrest [ Balchand Jain vs State Of Madhya Pradesh ]
When can Courts Grant anticipatory bail?
Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.[Refer Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5 SCC 1,2020 INSC 106]
4. When can a person file anticipatory bail?
A person can file an anticipatory bail petition when he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.
When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed.
5. Can a person file it before an FIR is filed?
It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. [Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5 SCC 1,2020 INSC 106]
6. Can a person file it if he is already under custody in connection with a different offence?
An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. –Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669
7. Whether the anticipatory should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail ?
The protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. [Refer Sushila Aggarwal]
8. Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?
Life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so..[Refer Sushila Aggarwal ]
9. Where can he file this application seeking anticipatory bail?
He can file it before a Sessions Court or High Court. In Sudip Sen vs The State Of West Bengal 2010 CriLJ 4628 , the Full Bench (5 Judges Bench) of the Calcutta High Court held that a person has a right to move either the High Court or the Court of Session for directions under Section 438 Cr. P.C. at his option. However, if a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time, it was observed.
10. If the offence is committed in one State, the FIR is lodged in another State and the accused resides in a third State. In which of the Courts of the three States would the accused approach for grant of anticipatory bail?
The accused can seek limited transit anticipatory bail or limited interim protection from the Court in the State in which he resides but in such an event, a ‘regular’ or fullfledged anticipatory bail could be sought from the competent Court in the State in which the FIR is filed. (Para 39-41) of Priya Indoria vs The State Of Karnataka [2023] 15 S.C.R. 525 : 2023 INSC 1008.
11.Can a second anticipatory bail petition be filed?
According to a Full Bench (5 Judges Bench) of Calcutta High Court (in Sudip Sen vs The State Of West Bengal 2010 CriLJ 4628), in case a person chooses to move the Court of Session in the first instance and his application for grant of anticipatory bail under Section 438 is rejected, he can again move the High Court for the same reason under Section 438 Cr. P.C. itself. Also, where a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time, but may invoke the extraordinary powers of the Supreme Court by seeking special leave to appeal in the Supreme Court. [Also refer: Imratlal Vishwakarma And Ors. vs State Of Madhya Pradesh 1997 (1) Crimes 289 ]. It was further held that a person will be entitled to move the High Court or the Court of Session, as the case may be, for the second time. He can do so only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the Court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court.
In Ganesh Raj vs State Of Rajasthan 2005 CRILJ 2086, the Rajasthan High Court held that a second or subsequent bail application can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. It was also held that second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Section Judge/Additional Sessions Judge.
12. Is a second application for anticipatory bail is maintainable on the same set of facts if the first application was dismissed as withdrawn?
A division bench of Kerala High Court had, in Aneesh Vs. State of Kerala : 2014 (1) KLT 790 :: 2014 (1) KHC 633 :: 2014 Cri LJ 1853 considered the issue whether. It was held as follows: (1) It cannot be said as an infallible and absolute rule that when an application for anticipatory bail is dismissed as withdrawn, the applicant cannot file a second application on the same set of facts (2)When a second application for anticipatory bail is made after withdrawing the first application, the court would consider the question whether the applicant was justified in withdrawing the earlier application or whether he was only gaining time or was indulging in forum shopping. The court has every discretion to deal with the application and consider whether the relief should be granted or not in the facts and circumstances of the case. (3) When a request for withdrawal of the application for anticipatory bail is made, it would be ideal for the court to record as to why the applicant wanted to withdraw the application. If such reasons are stated, it would enable the court to deal with the second application for anticipatory bail filed at a later stage. (4) In exceptional circumstances even in the absence of change of circumstances, a second application for anticipatory bail would be maintainable after withdrawal of earlier application, provided the court is satisfied that the attempt of the accused is not to delay the investigation of the case or to gain time in the matter of arrest or for some other undesirable gains. This view is seen upheld by the Supreme Court in Rani Dudeja vs State of Haryana (2017) 13 SCC 555.
13. When can Anticipatory bail be granted in case of an offence under SC-ST (Prevention of Atrocities) Act?
If the complaint does not make out a prima facie case for applicability of the provisions of the Act, 1989 then the bar created by Sections 18 and 18-A(i) shall not apply and thus the court would not be precluded from granting pre-arrest bail to the accused persons .( Para 35)- Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC – The bar under Section 18 of the Act, 1989 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the Act, 1989. We say so because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied. (Para 41- 46) – when the necessary ingredients to constitute the offence under the Act, 1989 are not made out upon the reading of the complaint, no case can be said to exist prima facie. As a sequitur, if the necessary ingredients to constitute the offence under the Act, 1989 are not disclosed on the prima facie reading of the allegations levelled in the complaint or FIR, then in such circumstances, as per the consistent exposition by various decisions of this Court, the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons. (Para 47-48) -The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989. It is expected of the courts to apply their judicial mind to determine whether the allegations levelled in the complaint, on a plain reading, satisfy the ingredients constituting the alleged offence. Such application of judicial mind should be independent and without being influenced by the provisions figuring in the complaint/FIR. The aforesaid role of the courts assumes even more importance when a prima facie finding on the case has the effect of precluding the accused person from seeking anticipatory bail, which is an important concomitant of personal liberty of the individual. (Para 50) –Shajan Skaria vs State Of Kerala 2024 INSC 625
14. Can anticipatory bail be granted to a proclaimed offender?
A proclaimed offender would not be entitled to anticipatory bail. But in an exceptional and rare case, Supreme Court or the High Courts can consider a plea seeking anticipatory bail, despite the applicant being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts.- [See State of Madhya Pradesh v Pradeep Sharma, (2014) 2 SCC 171 and State of Haryana vs Dharamraj 2023 INSC 784]
15. Can a ‘blanket’ anticipatory bail order be passed?
A blanket order under Section 438, directing the police to not arrest the applicant, “wherever arrested and for whatever offence” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future. (See Para 40-41 of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 ). An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. [Refer Sushila Aggarwal]
16. Can police seek cancellation of anticipatory bail?
It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.[Refer Sushila Aggarwal]
What are the conditions that can be imposed while granting anticipatory bail?
The Courts can impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. [Refer Sushila Aggarwal]