genesis of the concept of anticipatory bail

Genesis of the Concept of

Anticipatory Bail

VARAHABHATTLA BHIMACHENULU*

The concept of anticipatory bail has been the bye-productof judicial decisions on the interpretation of Sections 496, 497and 498 of the Code of Criminal Procedure 1898. The grantof an anticipatory bail has now been orystalised into a legal con-cept in Section 438 of the Code of Criminal Procedure 1973.The genesis of the concept can be traced to the recommenda-tions of the Law Commission, which thought it could be auseful addition to the protection of the rights of a person.

The Law Commission observed:

"The necessity for granting anticipatory bail arises mainlybecause sometimes influential persons try to implicate theirrivals in false oases for the purpose of disgracing them orfor other purposes by getting them detained in jail for somedays. In recent times, with the accentuation of politicalrivalry, this tendency is showing signs of steady increase."2

It took the view that if an accused person is not likely toabscond or misuse his liberty in some way it is not justified torequire him to submit first to custody and then apply for bail.3The central government in pursuance of the aforesaid recom-mendations of the Law Commission, introduced provisions inthe Draft Bill; conferring express powers. Considering this pro-vision the Law Commission • observed. "The Bill introduces a

B.Sc., B.L., Advocate, Visakhapatnam, Andhra. Pradesh.Law Commission of India, Forty first Report, pars 39.9 (1969).Id., at p. 321.

3. Ibid.

66 COCHIN UNIVERSITY LAW REVIEW I Ct'B '2.

provision for the grant of anticipatory bail. This is substantiallyin accordance with the recommendations made by the previousCommission (41st Report, vol. 1, pages 320-321, para 39.9).We agree that this will be a useful addition, though must addthat it i5 in very exceptional case that such a power should beexercised. We are further of the view that in order to ensure thatthe provision is not put to abuse at the, instance of unscrupulouspetitioners, the final order should be made only after notice tothe public prosecutor. The initial order • should only be aninterim one. Further the relevant section should make it clearthat the direction can be issued only for reasons to be recorded,and if the court is satisfied that such a direction is necessaryin the interests of justice's.

The Central Government in pursuance of the aforesaidrecommendations of the Law Commission, introduced provisionsin the draft Bill s conferring express powers on the High Courtand the Session Court to grant anticipatory bail.

The 'aforesaid clause in the draft Bill which embodied thethe recommendations of this Law Commission appeared asSection 438, in the Code. 6 The Section reads as follows:

"(1) When any person has reason to believe that he may bearrested on an accusation of having committed a non-bailableoffence, he may apply to the High Court or the Court of Sessionfor a direction under this section; and that Court may, if itthinks fit, direct that in the event of such arrest,. he shail bereleased on bail.

(2) When the High Court or the Court of Session makes adirection under :sub-section (1) , it may include such conditionsin 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 availablefor interrogation by a police officer as and when required;

Clause 447 of this draft Bill of the Code of Criminal Pry3cectufe1970.

Law Commilfsision of India, Fortyeighth Report, para 31, p. 1972.Section 438 of the Criminal Procedure Code 1973.

VARAHABHATTLA BHIMACHENULU 67

a condition that the person shall not, directly or indirectly,make any inducement, threat 'or promise to any personacquainted with the facts of the case so as to dissuade himfrom disclosing such facts to the court or to any policeofficer;

a condition that the pension shall not leave India withoutthe previous permission of the Court;

(iv) such other conditions as may be imposed under Rib-sec-tion (3) of section 437, as if the bail were granted underthat section.

(3) If such person is thereafter ,arrested without warrant by anofficer-in-charge of a police station on such accusation, and isprepared 'either at the timie of arrest or 'at any time while in thecustody of such officer to give bail, he shall be released on bail;and if a Magistrate taking cognizance of such offence decidesthat a warrant 'should issue in the first instance against suchperson, he shall issue a bailable warrant in conformity with thedirection of the Court under Sub-Section (1) of the Code ofCriminal Procedure, 1973."

The Code of Criminal Procedure 1898 did not contain anyspecific provision for granting anticipatory bail. The High Courtshad a sharp idivergence of opinion about the exercise of any suchpower. The majority of courts held the view that there was nosuch power vested in them. When the code came up for revisionbefore the Law Commission, it considered this aspect.7

The question whether a person who is not in custody oragainst whom there is no order of arrest can be granted ananticipatory bail, came up for consideration of the HimachalPradesh High Court in State v. Om Prakash. 8 The respondents'contention before the trial court was that they apprehended acase under sections 420, 467, 468 and 120B of the Indian PenalCode had been registered against them, the police was likelyto arrest them at any moment and that the warrants had been

See the Law Oommlissilon of India: F y-first Report, vol. 1, p. 321(1969).1973 Cr1. L. J. 824.

68 COCHIN UNIVERSITY LAW REVIEW

obtained. They pleaded that being respectable Government em-ployees they would be put in embarrasing position before thepublic. The trial court granted anticipatory bail in spite of thepublic prosecutors' contention against the grant of the anticipa-tory bail to the respondents.

The Madhya Pradesh High Court was of the view that thegrant of bail to a person pre-supposes that he is in the custodyof the police or of the court or that he Is required to surrender.Accordingly, in the Courts' view it was unreal to talk of grant-ing bail to any person who is under no such restraint. 9 Thus,mere registration of a case and the apprehension of the peti-tioner being put under arrest is not deemed sufficient to invokethe powers of the court to grant bail. It was held that the courtcannot put a person under restraint when he is a freeman andthere is no substantial charge against him except the informationcontained in the first information report which may or may notbe sufficient in apprehending that person.

In Amir Chand v. Crown,' 0 the Full Bench of the EastPunjab High Court observed, "In the case of a person who isnot under arrest but for whose arrest warrants have been issued,bail can be allowed if he 'appears in court and 'surrenders him-self." 11 The Hyderabac1 12 and Lahore" High Courts have alsoconceded that bail can be granted to a person without actuallyputting him under arrest. In State v. Jagan Singh" the courtexplicitly recognised the principle that bail can be granted inanticipation to a person who surrenders before the court, appre-hending that the police might arrest him in connection withsome cognizable offence.

The opinions expressing the view that bail can be grantedin 'anticipation rather than only on apprehension, are not too many.

State of M.P. v. Narayana Prasad Jaiswal, AIR. 1963 M.P. 26.A.I.R. .1950 E.P. 53.Id., at p. 62.See Muzaffaruddin v. State of Hyderabad, A.I.R. 1953 HO. 219,

Sunder Singh v. State, A.I.R. 1954 Hyd. 55.

Hidayatullah Khan v. Crown, AIR. 1949 Lab. 77.

A:1.R. 1952 VJP. 87


But such a view set a trend for giving validity to the principle ofgranting anticipatory bail.

The purpose underlying section 438 of the Code is toensure that person anticipating arrest is not obliged to go tojail till he is able to move the court for being released on bail.But such a direction should not come in the way of policeinvestigation; it should not seek to circumscribe the police powersrelating to remand to police custody for purposes of facilitatinginvestigation. In Somabhai v. State of Gujarat" the High COurtof Gujarat observed that a direction for anticipatory bail wouldnot be allowed to come in the way of a fuller consideration ofthe question of custody of the person when the investigation iscomplete. The court said;

"The order may therefore provide that it will exhaust itselfon or will remain, operative only till the expiry of say tendays from the date of the arrest and the accused will haveto obtain in a fresh order in usual course. . To avoidcomplications, instead of unlimited duration the order mayprovide that it will become inoperative if no arrest is madesay within 90 days of the order."16

The Patna High Court was guided by these considerations17and ruled that the provision be used in cases where "the courtis convinced that the person is of such a status that he wouldnot abscond or otherwise misuse his liberty." 18 The court furthersaid that even before this provision was introduced there hadbeen the practice in vogue to release such persons without abail or on their giving a person under-standing that they wouldappear before the court if required to do so.19

The emphasis on status reveals an attitude of taking arestrictive view of the personal liberty of the common man.Personal liberty is to be 'enjoyed by all and in an equal measure.

1977 Cni. L.J. 1523 (Guj).Id., at 1524.Narsingh Lal Daga v. State, 1977 CHI. L.J. 1776.

Id., at 1777.

19. Ibid.


It has nothing to do with the status of a person as such, Whichhe seeks to canvass for his position in life, and which the so-ciety so often measures only in terms of his wealth and power.The Law Commission's criterion has been that justification fordenying personal liberty lies on the apprehension of his abscond-ing or misusing his liberty. Regarding this the Patna High Courtobserved,

"Ordinarily, there should be a presumption in favour ofevery citizen that he is not likely to abscond or otherwisemisuse his liberty while on bail. But such presumptions aregenerally belied and one cannot be granted bail on thataccount."2°

The observation supersedes the labours of the Law Com-mission, which recommended the use of such a mechanism inpromoting the interests of personal liberty. it supersedes thewisdom of the legislators who formulated, debated and passedthe legislation.

In Badri Prasad Pathya v. State 21 the Madhya Pradesh HighCourt has, however, endorsed the view that grant of anticioatorybail is mainly meant to relieve a person from being disgracedor from being unnecessarily deprived of liberty; though in theinstant case the consideration of high hazards of releasing thepersons alleged to be involved in a prima facie case of murderweighed with the court in rejecting the application.

In Balachand v. State of M.P. 22 the Supreme Court found:

"(T)he Legislature in enshrining the salutary provision inSection 438 of the Code which applies only to non-bailableoffences was to see that the liberty of the subject is notput in jeopardy, on frivolous grounds at the instance ofunscrupulous or irresponsible persons or officers."23

Id., at 1776-7

1977 Cri. L.J. (N.O.C.) 130 (M.P.)

1977 Cri. L.J. 225 (S.C.)

Id., at 234 per Fazal Ali, J.


At the same time the court stressed that being an extra-ordinary power it should be exercised sparingly and only inspecial cases. The Court further said that the "rule of prudencerequires that notice should be given to the other side beforepassing a final order of anticipatory bail so that wrong orderof anticipatory bail is not obtained by a party by placing in-correct or misleading facts or suppressing material facts."24

In short anticipatory bail cannot be invoked as a matterof rule. It cannot be used to thwart the investigation or-to defeatthe exercise of proper police powers needed for the purposesof investigation. However, when police actions tend to tilt thebalance against a party whose personal liberty is likely to bejeopardised without justification under the law, courts can exer-cise the discretion to issue a direction of anticipatory bail topersons apprehending arrest during petndency of investigation ofnon-bailable, offences.

A search for factors which should guide imposition of con-ditions in anticipatory bail is to continue. Some conditions areengrafted in clause (2) of Section 438 of the Code of CriminalProcedure, 1973.

In applying these conditions to specific situations the courtmay find it convenient to reckon factors like, gravity of theoffence, nature of the accusation, character and antecedents ofthe petitioner and the like.

The Supreme Court laid down in Balchand's case24a thatthough section 438 of the code does not mention any conditionin which the order of anticipatory bail could be passed, the con-ditions imposed by section 437(1) are implicitly contained insection 438 of the code. This is because section 438 immediatelyfollows 'section 437 and if these conditions were not implied insection 438, a person who is accused of murder may get awayunder section 438 by obtaining an order of anticipatory bailwithout the necessity of proving that there were reasonablegrounds for believing that he was not guilty of an offence punish-

24. See supra n. 22.

24a. Supra n. 22.


able with death or imprisonment for life. To say that section438 is to be applied without the conditions mentioned in Section437 would render the provisions of section 437 nugatory andwould give a free license to the accused persons charged withnon-bailable offences to get easy bail by approaching the courtsunder section 438, by-passing section 437 of the code. Section438 in the opinion of the Supreme Court, does not contain un-guided or uncanalised power to pass an order for anticipatorybail. 24b

In Bolchand's case 25 an attempt was made to exclude theprovisions of the Criminal Procedure Code relating to anti-cipatory bail on the ground that these provisions were inconsist-ent with Rule 184 of the Defence of India Rules. It was con-tended that there was :a conflict between the Rule and Section438 of the Code in so far as the rule lays down that a personshall not be released on bail on his own bond unless the prose-cution has been given opportunity to oppose the application forsuch release and where the prosecution opposes the applidationand the contravention is of provision of the rules or order madethereunder notified by the Central Government or the StateGovernment, thie court is satisfied that there are reasonablegrounds for believing that he is not guity of such contravention.The Supreme Court held that Rule 184 only seeks to place acurb on the exercise of the power to grant bail by providingthat the court shall not release a person on 'bail unless the afore-said two conditions are satisfied.

The Rule only imposed conditions on the exercise of thepower of granting bail in certain kinds of cases. When the con-ditions are satisfied the fetters are removed and the power ofgranting bail given to the courts under the Code of CriminalProcedure revived and became exercisable. The Supreme Courtheld that the non obstante clause in the Rule emphasised thatthe provision in the rule is only intended to restrict the powerof granting bail under the Criminal Procedure Code; the Ruledid not confer a new power exercisable on certain conditions.

at P. 377.

25. Supra ii. 22.


In Rameswak v. State of M.P.26 the High Court of MadhyaPradesh had to consider an interesting question relating to thepowers of the High Court and the court of session to issuedirections for grant of anticipatory bail to persons who havebeen released on bail during committal proceedings and not yetbeen committed in custody to the court of session for trial, butwho apprehended that they may at the time of committing thecase to the court of session be remanded to custody by thecommitting magistrate under section 209, Criminal ProcedureCode 1973. In this case, the accused-applicants, apprehendingarrest in connection with a report lodged with the police, appliedfor and, consequently secured anticipatory bail for the allegedoffences under sections 363, 366 and 376, Indian Penal Code,1860. Thereafter, they were charge-sheeted for offences undersections 363 and 366 of the Penal Code. Fearing that they mightbe committed by the magistrate to the court of sessions, theyagain applied to that court for anticipatory bail. That applicationwas, however, rejected on the ground that no anticipatory bailcould be granted after the filing of the 6a:flan and that themagistrate has got the power to take the accused in custody atthe time of committing the case to the court of session undersection 209, Criminal Procedure Code. The accused-applicantsthen moved the High Court for anticipatory bail under sections438, 482 and 483 of the Code. A single Judge of the MadhyaPradesh High Court, considering the divergent views27formulatedthe following questions for consideration by a larger Bench:

Whether the bail granted under Section 438 of the Codeis valid for those offences for which bail has been grantedtill the conclusion of the trial; and

Whether an application for anticipatory bail can lie fordirecting the committing Magistrate , not to commit theaccused persons under custody while committing the caseto the court of session. -

1979 Cat L.J. 1485.The cases, referred to in this connection were B. L. Verma v. Stateof M.P. 1979 Jab. L. J. 419; Kanhaiyalal Rathi v. State of M.P.1978 L.J. note 30; Rawat Dan v. State of Rajasthan, 1975 Cr1. L.J.691.


On this reference the larger Bench of the High Court con-sidered the guiding principles of interpretation and constructionof statutes including the historical facts and circumstances rele-vant for the interpretation of the statutory provisions, and heldthat the provisions regarding anticipatory bail contained in sec-tion 438 are not to be read in isolation, but together with theprovisions of section 437 which deal with taking of bail in casesof non-bailable offences. On this basis and after examining thelanguage used in Section 437 and 438, the court concluded thatthese sections do not contemplate a comprehensive and blanketbail order covering all offences irrespective of their nature andgravity. Further, the court took the view that whenever anyperson apprehends that he is likely to be arrested in a non-bailable offence he may apply for grant of anticipatory bail eitherbefore his actual arrest or during the course of committal pro-ceedings if he apprehends that he is likely to be committedunder custody by the magistrate while committing the case tothe court of session. In addition, the court held that as soon asa person is enlarged on bail on the directions of anticipatorybail order under section 438, it would be deemed by implicationas if it was granted under section 437 (1). Consequently thebail, according to the court would be effective till the conclusionof the trial unless it is cancelled under section 437(5) or undersection 439(2) on grounds known to law, and failing to filechallan in the court is by itself no ground to cancel the bail.

The Court answered the reference as below:

The bail granted under section 438 (anticipatory bail) willbe valid and operative for those offences only for which thebail has been granted which would last till the conclusionof the trial, unless it is cancelled under section 437 (5)of the Code.

An application for anticipatory bail can lie for directingthe committing magistrate not to commit the accused per-sons under custody while committing the case to the courtof session.

VARAHABHATTLA BHIMACHENULU

75

This decision in this case is obv,iously consistent with the re-cent trend of liberalising the law of bail in favour of personsseeking bail.

The Code of Criminal Prodcedure 1973, does not extendto the state of Jammu and Kashmir, which continues to haveits own Criminal Procedure Code, the provisions being practi-cally similar to those of the Code of Criminal Procedure, 1898.The state Code (like the Code of 1898) does not contain anyspecific provision for the grant of anticipatory bail. However,the High Court of Jammu. and Kashmir in its decision inKali Dass v. S.H.O., Police station, Resai n read into the pro-visions of the state Code such a power of granting anticipatorybail. The court considered the meaning of the term 'bail' andheld that the person seeking it must first satisfy the court that heis under some actual physical restraint. 29His mere apprehensionof such retraint in future would not be enough. The court, how-ever, considered the expression "appears" occurring in sections496 and 497 and held that when an accused person seeks bailby "appearing" in court, he in fact surrenders himself to itscustody and in that sense the 'expression "appears" means pre-sents and surrenders himself before the court. In such a situa-tion, according .to the court, there would be a notional detentionof the accused person. The court, therefore, concluded that ajoint reading of sections 497 and 498 of the State Code wouldlead to the irresistible conclusion that the court has the powerto admit an accused person to bail, subject to his satisfying theconditions laid down in the State Code and making out a specialcase for being admitted to bail, even in those cases where; he"appears" and surrenders to the custody of the court in anti-cipation of his arrest. In that event the court may grant bail tothe person before he has been actually arrested by the policeand in anticipation of such arrest. Thus, though the State Codehas no specific provision for granting anticipatory bail as insection 438 of the Code of 1973, the court in effect, by a liberaland innovative interpretation, read into it such a power to grantanticipatory bail.

1979 OIL L.J. 345.

Id., at p. 350.


The decision in the Kali Dass case is an instance of therecent trend of liberalisation of bail law through judicial process.It would be particularly useful and welcome when legislativeprovisions regarding anticipatory bail (ie., section 438) arebeing withdrawn in a state like U.P. The, decision in this case isnoteworthy in another respect also. The High Court of Jammuand Kashmir has disagreed with the view taken by the Full Benchof the High Court of Punjab and Haryana in Gurbaksh Singh v.State of Punjab 30 namely, that for proper and effective investi-gation, interrogation of an accused in custody is always essen-ial and that this fact should be taken into account while grant-ing anticipatory bail under section 438. While disagreeing withthis view the High Court of Jammu and Kashmir felt that theproposition had been very broadly stated and could not haveany universal application.

In Amiya Kumar v. State W.B. 31 the Calcutta High Courthad to consider the question whether a person whose applica-tion for anticipatory bail under Section 438, Criminal ProcedureCode has been rejected by the court of session, can again filean application for anticipatory bail before the High Court. TheCourt thought that The simple language in section 438(1) clearlyand unambigously indicated that the petitioner for anticipatorybail may apply to either of the courts, namely the High Courtor the Sessions Court. The word "or" in section 438(1) hasbeen used in the alternative or exclusive sense. According tothe court this provision for alternative choice is quite consistentwith the object of the Code to avoid delay in the disposal ofcriminal cases and to avoid the abuse of the processes of thecourt and also wastage of the court's time. It also compared thelanguage of section 438(1) with that used in section 439 andin sections 397, 398 and 399 of the Code and held that thesecond petition for anticipatory bail before the High Court isnot maintainable after the rejection of the first one by the courtof session.

It is submitted that the decision is not quite in tune withthe trend of liberalising the bail law. A decision granting or

1978 Chi. L.J. 20 See infra n. 41.1979 Cri, L.J. 288.


rejecting an application for bail or anticipatory bail is not appeal-able nor is a revision in respect of such a decision possible asthe same is only an interlocutory order. The decision of the Cal-cutta High Court would, therefore, mean that the aggrieved peti-tioner would have no remedy on the rejection of his petition bythe Sessions Court. It would also lead to another incongruousconsequence. Section 438 gives concurrent powers to the HighCourt and the Court of Session; but as in other analogous pro-visions in the Code, it is normally to be presumed that the lattercourt would be first approached for grant of anticipatory bailunless an adequate case for not approaching the said court hasbeen made out. This legal position was fully accepted and reliedupon by the High Court of Punjab and Haryana in Chajju Ramv. State of Haryana32 and as the petitioners in that case had notshown why they had chosen to bypass the Sessions Court whilstapproaching the High Court directly, the court without passingany orders on the petition directed the petitioners first to

• approach the court of session for grant of anticipatory bail.

If both Chajju Ram and Amiya Kumar cases are to beaccepted as good law, it would mean that barring those veryrare cases where there are reasons for not approaching the Se-ssions Court first, no case for anticipatory bail can ever comebefore the High Court. This appears to be inconsistent with thelanguage of section 438 and the spirit of the bail provisionsgenerally. To that extent, the narrow interpretation of sx)tion438(1) as given in the Amiya Kumar case does not seem to bea sound and correct interpretation of section 438(1).

In State of Maharashtra v. Vishwas33 the High Court of Bom-bay, relying on the observations of the Supreme Court in Bala-chand Jain's case33a expressed the view that the initial order ofthe sessions court granting anticipatory bail was not sustainable,as that court did not issue notice to the State giving it an oppor-tunity to oppose the petition for anticipatory bail, nor did thecourt record its reason why it was not possible to serve such

1978 Cri. L.J. 608.

1978 Qi. L.J. 1403.

33a. Supra ii. 22 at 229, 234.


notice ion the State. The initial order of the sessions court sufferedfrom still further infirmity, according to the Bombay High Court,as the order did not disclose ay reason why the court was in-clined to make the order granting the anticipatory bail.

In Mahanthagouda v. State of Karanataka 34 the High Courtof Karnataka, relying on the Supreme Court decision in Bala-chand Jain's case 35 and the decision of the Full Bench of theHigh Court of Punjab and Haryana in Gurbaksh Singh's 36 caseheld that where the nature of a charge is so serious as to bepunishable with death or imprisonment for life, it would nor-mally be inapt to exercise the power of the grant of anticipatorybail at the every threshold of the investigation unless the courtat that very stage is satisfied that such a charge is false orgroundless. Considering the facts and circumstances of the case,the High Court refused to grant the anticipatory bail as askedfor by the petitioner.

In Suresh Vasudeva v. State 37 the petitioner approached theDelhi High Court for grant of anticipatory bail as he apprehendedarrest on the charge of an offence under the Foreign ExchangeRegulation Act, 1973. Earlier, a case under the Prevention ofCorruption Act was registered against R. K. Dhawan, Addi-tional Private Secretary to the former Prime Minister of Indiaand nine others including the petitioner, and the petitioner wasreleased ion bail yin that case. The petitioner alleged that he wasbeing politically victimised, sand prayed for grant of anticipatorybail.

The High Court of Delhi considered the legislative historyof section 438, made a detailed analysis of that section and ofthe relevant provisions of the Foreign Exchange Regulation Act,referred to the views expressed by the Supreme Court in Bala-chand Jain's 38 case and while granting anticipatory bail to the

1978 Cr:. L.J. 1045.

Supra n. 22.

1978 Cri. L.J. 20.

1978 Cri. L.J. 677.

Supra n. 22.


petitioner elucidated the law. According to the High Court,section 438(1) 39 applies only to a non-bailable offence; but itis not essential that the offence must also be a cognizable one.The section also does not require that the offence in respect ofwhich the anticipatory bail is asked for must have been_ regi-stered. All that it contemplates is that the person applying hasreasonable belief that he may be arrested on accusation of havingcommitted a non-bailable, offence. Sub-section (1) of sect=438 has not been made subject to sub-section (3) of that sec-tion. The expression "If such a person is thereafter arrested.with-out warrant by an officer in charge of a police station" appear-ing in sub-section (3), merely illustrates the case of workingout an order for anticipatory bail granted under section 438(1)in respect of a cognizable offence, but that does not mean thatsection 438(1) is limited to the apprehended arrest only in acognizable offence or arrest only by an officer in charge of apolice station. Section 438(3) is really what may be termed as"machinery section" for working out an order under section438 (1) by way . of an illustration. The conditions mentionedunder section 438(2) which may be imposed are merely illu-strative, and that sub-section does not control the power con-ferred by section 438(1).

In Bansi La! v. State of Haryanao a case was registeredunder the Prevention of Corruption Act against Bansi Lal, anerstwhile Chief Minister of H.aryana and later the Defence Mini-ster of India, and his son. While opposing their application foranticipatory bail it was argued on behalf of the state that it wasessential to submit both the petitioners to some specialised typeof interrogation by keeping them in custody. This argument wasnot appreciated by the single judge of the Punjab and HaryanaHigh Court. The judge was rather inclined to believe, whileallowing the petition, that stress on the dire necessity of resort-ing to this type of investigation or interrogation only reinforcedthe :apprehension of the petitioners that their custody was beingsought for the purpose of subjecting them to undue victimisationor humiliation for extraneous reasons.

See supra a. 6.

1978 Cra. L.J. 472.


In Gurbaksh Singh v. State of Punjabo the Full Bench of thePunjab and Haryana High Court had to consider the generalprinciples and the necessary guidelines for the exercise bycourts of the extraordinary power of granting anticipatory ballunder section 438 of the Code of Criminal Procedure, 1973.The matter came up before the Full Bench on the orders of re-ference passed in respect of five petitions for anticipatory bail.All these petitions were in connection with one First Informa-tion Report. On its basis, a case under section 5(1)(d) and(e) read with section 5(2) of the Prevention of Corruption Actand Sections 406, 409, 477-A and 120-B of the Indian PenalCode was registered against the petitioners and against ShriSingh, former Chief Minister of the Punjab along with someother ministers, office bearers of the Pradesh Congress commi-ttee and senior Government officials. It was alleged that thesepersons had conspired to collect huge funds for the holding of asession of the Congress party and to personally amass wealth byabuse of authority and misuse of power. It was alleged that theconsiprators obtained an amount exceeding rupees five crores,and also acquired assets disproportionate to their known sourcesof income in the form of movable and immovable property andand shares held benami and clandestinely in the names of otherpersons.

At the outset, the High Court highlighted the two rival viewsin connection with the grant of anticipatory bail. According toone view, section 438 of the Criminal Procedure Code gives anunlimited and unrestricted discretion to the court to grant anti-cipatory bail if and when it thinks fit; and according to theother view, the power under section 438 is of an extraordinarynature which is to be exercised in exceptional circumstances andis plainly circumscribed by the other provisions of the CriminalProcedure Code. In a well reasoned judgment it expressed itsinclination to accept the second of the two above mentionedviews regarding the scope of section 438. The High Court thenaddressed itself to the task of determining and elucidating thekind of cases in which the power to grant anticipatory bail is tobe exercised and the nature of the special case which the peti-

41. 1978 Cad. L.J. 20.


timer must make out for securing an order in his favour. TheHigh Court .,eonsidered these matters in de pth and then for thesake of clarity summarised the main conclusions in this regardin the following terms:

That the power under Section 438, Criminal ProcedureCode, is of an extraordinary character and must be exer-cised sparingly in exceptional cases only.

That neither section 438, nor any other provisions of theCriminal Procedure Code authorise the grant of blanketanticipatory bail for offences not yet committed or withregard to accusations not so far levelled.

That the said power is not unguided or =canalised butall the limitations imposed in the preceding Section 437,Criminal Procedure Code, are implicit therein and must beread into Section 438 as well.

That in addition to the limitations imposed in Section 437Criminal Procedure Code, the petitioner must make out aspecial case for the exercise of the power to grant anti-cipatory bail.

That where a legitimate case for the remand of the offenderto the police custody under Section 167(2) can be madeout by the Investigating Agency or a reasonable claim tosecure incriminating material from information likely to bereceived from the offender under Section 27 of the Evi-dence Act can be made out, the power under Section 438of the Code be not exercised.

That the discretion under Section 438, Criminal ProcedureCode, be not exercised with regard to offences puni3hablewith death or imprisontment for life unless the Court at thatvery stage is satisfied that such a charge appears to befalse or groundless.

That the larger interest of the public and State demand thatin serious cases like economic offences involving blatantcorruption at the higher rungs of the executive and politicalpower, the discretion under Section 438 of the Code be notexercised.


8. That mere general allegations of mala fides in the petitionare inadequate, and thie, court must be satisfied on materialsbefore it that the allegations of mala fides are substantialand the accusation appears to be false and groundless.

It was contended on behalf of the petitioners that antici-patory bail might be granted to them as they have held highoffice in public life and that they are now men of susbstance whoare not likely to abscond and would willingly face trial. Whilerejecting the contention, the High Court observed,

"Now if the 'charge against the petitioners is untenable, itwould be irrespective of their status in public life or withregard to their property, 'but if the charge be true the factof high office and the earlier wielding of political power isnot a mitigation but only 'an aggravation of the crime."42

After considering closely the merits of the petitions, theHigh Court ultimately came to the conclusion that the petitionersfailed to make out a case for the grant of anticipatory . bail andthat their petitions were liable to be dismissed.

The expression "anticipatory bail" is misnomer. This factwas highlighted by Bhagwati, J., in Balachand v. State of M.P.43in the following words:

"We do not find in this section the words 'anticipatory bail,'but that is ,clearly the subject with which the section deals. Infact, 'anticipatory bail,' is misnomer.... When the Court grants`anticipatory bail,' what it does is to make an order that in theevent of arrest a person :shall be released on bail. Manifestlythere is no question of release on bail unless a person is arrestedand, therefore, it is only on an arrest that the order granting(anticipatory bail) becomes operative .... It is a power exercis-able in case of anticipated accusation of nonAbailable offerice."44

The following two conditions must exist before the powerof the court under section 438 can be invoked by the petitioner,namely,

Id., at p. 41.Supra n. 22.Id., at pp. 368, 369.


There must be an accusation of the petitioner havingwitted a non-ballable offence. Obviously, this accusationmust be an existing one or in any case stemming frOM thefacts already in existence.

There must be reasonable apprehension or belief in themind of the petitioner that he would be arrested on thebasis of such an accusation,. The simultaneous existence ofboth these 'conditions is a sine qua non for invoking court'sjurisdiction.

In Omkar Nath Agarwal v. State 45 it was held by the Alla-habad High Court that the power under section 438 is not to beexercised in vacuum but only on the satisfaction of the condi-tions spelled out in the section itself. The Court held,

"It is obvious that the provision comprises of two-parts. Thefirst part envisages of the conditions under which a person cs en-titld to make an application for anticipatory bail in 'the Court ofSession or in the High Court. There are only two conditionswhich must exist before he can move such an application. Inthe first place there must exist a ground to believe that he maybe arrested and secondly there must be an accusation of hishaving committed a non-bailable offence."46

Dwelling on the meaning of 'reasonable apprehension,'Barooah, J., of the Calcutta High Court in Shyam Sunder Beri-wala v. Stateo made the following observations:

"A prson applying for anticipatory bail must have a rea-sonable 'apprehension of his being arrested on an accusation ofhaving committed a non-bailable offence although no cases mayactually have been started against him. For instance, if an orderfor investigation is passed by .a Magistrate under Section 156(3)of the code, the person concerned must necessarily have a rea-

1976 Cri. L.J. 1142(AR).

Id., at p. F143.

82 C.W.N. 428 (1977-78).


sortable apprehension that he may be arrested though no formalF.I.R. has been filed. In the instant case, even if the police hadthreatened the petitioners that they may start fresh case againstthe petitioners, it cannot be said that their apprehension or anti-cipation of their being arrested is reasonable."48

In Bhagirathi Mahapatra v. State 48a the Orissa High Courtheld that merely because it is alleged that the petitioner appre-hends arrest on a false accusation and that such arrest will bea cause of disgrace and dishonour to him the court will not bejustified in granting an anticipatory bail. The court has both aright and a duty to satisfy itself that the apprehension is reason-able. If the court chooses to accept the allegations made in thepetition without applying its mind and examining the materialsavailable with the police, the court will be failing to dischargeits duty.

It is thus clear that the conditions pre-requisite for thecourt's exercise of its discretion under section 438 of the codeis that the person seeking such relief must 'have a reasonableapprehension of his arrest on an accusation of having committeda non-bailable offence.

The Code confers a statutory right on the police to investi-gate into the cognizable crime without the sanction of any judi-cial authority. Reference may be made to chapter XII of theCode. Section 151 empowers a police officer to arrest any per-son in order to prevent the commission of a cognizable offence.Suppose, if a person who has been granted blanket anticipatorybail grievously assaults another person or attempts to commit acognizable offence the police authorities will be powerless totake any action against him. Section 154 requires that informa-tion regarding the commission of a :cognizable offence shall bereduced into writing and prescribes the procedure for record-ing the same. Section 156 empowers a police officer to investi-gate into such a cognizable case without the order of the Magi-strate. Section 157 besides laying down the procedure for investi-gation empowers 'the police to take measures for the discovery

48. Id., at 431.

48a. 1975 Cri. L.J. 1681.

V ARAHABHATTLA BHIMACHENULU 85

and arrest of the offender. Further, section 57 empowers a policeofficer to detain in custody a person arrested for twenty-fourhours exclusive of the time necessary for the journey from theplace of arrest to Magistrate's Court without seeking the sanc-tion of . any court or magistrate. The right of the police indeedseems to have a constitutional :sanction by virtue of article 22(2)of the Constitution of India which speaks in similar terms. ifthe police officer fails to complete the investigation within, twenty-four hours, for such cases, the Code makes express provisionand 'section 167 (2) deals with the matter in detail.

The very purpose of section 167 is to allow an investigatorto interrogate an accused person in isolation and extract fromhim incriminating evidence. Henee, the grant of anticipatory bailat the very initial stage will destroy the continuity of investiga-tion which can only be guaranteed, if the accused is in custodyof the police. Moreover, it would thwart the speedy investiga-.Lion by affording ample opportunity to the offender to cover allthe traces of his crime through the support and assistance ofhis relations and sympathisers. There is also a likelihood of theoffender influencing and underinining the prosecution witnesses.There is also every possibility of the offender fleeing from justice.It is submitted that an investigating agency :should not be de-nuded of its right to interrogate the offender in custody. Thegrant of anticipatory bail at the very threshold : deprives the in-vestigation of its vital elements of surprise, speed and swiftness.It is further submitted that mere joining of a person in course ofinvestigation whilSt on :anticipatory bail is no substitute for in-vestigation in custody in all those cases where his personal in-vestigation may be legitimately required.

Another important ' question is of 'admissible evidence'which the investigating agency is entitled to secure from theoffender during the course of investigation. Section 162 of thecode declares that all statements made by any person to a policeofficer in the course of investigation would be inadmissible.Similary, sections 25 and 26 of the Indian Evidence Act alsobar- the admissibilitY of any confession made to a police officer.To this strict rule, however, an exception is provided by section27 of the said Act. The recoveries made are invaluable pieces


of prosecution evidence. The investigation agency is, therefore,both duty bound and entitled to secure these material evidencefrom the offender. It is an, invaluable right not only in the invest-igation of a case but also in establishing the same in the courtof law. If an offender is granted anticipatory bail at the veryinception of the investigation, it may well be that section 27 ofthe Evidence Act, can never come into play. It is plain thatwhere the investigating agency should reasonably claim thatit has to secure incriminating material from information likelyto be received from the offender himself, the power to grantanticipatory ibail cannot be legitimately resorted to.

However, it is not meant that the investigating agency cantake its own time and by being tardy in its investigation of thecases keep the accused locked up in custody. It is precisely totake care of such an eventuality that a very salutary provisionin terms of proviso (a) to sub-section (2) of section 167 hasbeen incorporated. Hence enough safeguards have been laiddown in the code against the abuse or misuse of power by thepolice. It is utmost importance that the judiciary should notinterfere with the police in matters which are within their domainand into which law omposes on them the duty of enquiry. Thiscannot be stated in any way better than in the memorablewords of Lord Porter in Emperor v. Khwaja Nazir Ahmad.48

"In India as has been shown there is a statutory right onthe part of police to investigate the circumstances of analleged cognizable crime without requiring any authorityfrom the judicial authorities, and it would, as their Lord-ships, think, be an unfortunate result if it should be heldpossible to •interfere with those statutory rights by an exer-cise• of the inherent jurisdiction of• the court. The functionsof the judiciary and the police are complementary notoverlapping and the combination of individual liberty with adue observance, of law and order is only to be obtained byleaving each to exercise its own function, always, of ,.....ourse,subject to the right of the court to intervene in an appro-priate case when moved under Section 491, Criminal Prom-

48. A.LR. 1945 P.C. 118.


dure Code to give directions in the nature of habeascorpus."'"

It is submitted that in case of conflict between the statutoryrights and duties of the police on the one hand and discretionarygrant of anticipatory bail on the cater the latter must give wayto the former. The right of investigating agency is further pro-tected by the provisions of section 437 of the code. It is a wellestablished rule !that even in ordinary cases if an .investigatingagency is able to make out a legitimate case to secure the re-mand of the offender in police custody, the bail is not granted.It follows that if no bail can be granted in such a situation, itshould obviously be not granted under section 438, if the investi-gating agency is able to establish a clear case that the remandof the offender in police custody is required. Hence, the consi-derations for the grant of bail mentioned in section 437 imper-ceptibly 'regulate the exercise of discretion under section 438.

It is submitted that the power to grant anticipatory bailshould not be allowed to be invoked in order to defeat, thwart,stall or render impotent the provisions relating to remand inpolice custody for the purpose of facilitating investigation, .3r ofsecuring incriminating material from information likely to bereceived from the offender under section 27 of the Evidence Act.It may, therefore, be specified in the order that the .accused isto be released on anticipatory 'bail provided he is not requiredto be remanded- to police custody and that if he is so requiredthe police officer would be at liberty to obtain suitable orderfrom the court in that behalf either before the arrest or withina reasonable time.

The power to grant anticipatory bail is of an extra-ordinarycharacter. and must be exercised sparingly and only in excep-tional cases. The following observations of Bhagwati, J., arepertinent in this context.

"(P)ower of granting 'anticipatory bail' is somewhat extra-ordinary in character and it is only in exceptional cases whereit appears that a person might 'be falsely implicated, or a fri-

49. Id., art p. 22.


volous case might be launched against him, or "there are rea-sonable grounds for holding that a person accused of an offenceis not likely to abscond, or otherwise misuse his liberty whileon bail" that such power is to be exercised."50

Section 438 is widely worded and does not engraft anylimitations on the power of the court in case a person who hasreason to believe that he may be arrested on an accusation ofhaving committed a .non-bailable offenc and makes an applica-tion invoking the power of the court for a direction grantinganticipatory bail. Even so, the power has to be exercised in ajudicial manner with the end in view that whilst the object ofthe provision is served the pit falls inherent in the situation areeschewed. Some guidelines for the exercise of power under sec-tion 438 were ascribed in these words by the Supreme Court:

"As section 438 immediately follows section 437 which isthe main provision for bail in respect of non-bailableoffences it is manifest that the conditions imposed by sec-tion 437(1) are implicitly contained in section 438 of theCode .... Section 438 does not contain unguided or un-canalised powers to pass an order for anticipatory bail, butsuch an order being of an exceptional type can only bepassed if, apart from the conditions mentioned in Section437, there is a special case made out for passing the order.The words "for a direction under this section" and "Courtmay, if it thinks fit direct" clearly show that the Court hasto be guided by a large number of considerations includingthose mentioned in Section 437 of the Cade." 51

Section 437 contains a prohibition to grant bail in all caseswhere there are reasonable grounds for believing that the offen-der is guilty of an offence punishable with death or imprisonmentfor The nature and the seriousness of the charge is, there-fore, a vital consideration for the non-release of an accused per-son, on bail. It is true that the gravity of the offence and theheniousncss of the crime involved is likely to induce the peti-tioner to avoid the course of justice and that must weigh with

Balchand Jain v. State of M.P., Supra, n. 22.Id., at 377.

1.1 ARAHABHATTLA BHIMACHENULU 89

the court when considering the question of grant of anticipatorybail.

An authoritative observation in this context is available inBalachartd's case, 52 where Fatal Ali, J., has observed that itcould never have been the intention of the legislature that per-sons accused of serious charge, like murder, should get easy bailby approaching the court under section 438 and bypassing sec-tion 437 thereof. The Punjab and Haryana High Court observedin Gurbaksh Singh. v. State.53

"We are, therefore, of the view that the discretion in Sec-tion 438, Criminal Procedure Code, should not be exercisedwith regard to offence punishable with death or imprison-ment for life, unless the Court at that very stage is satisfiedthat such a charge is false or groundless."'54

CONCLUSION

The most important consideration for the exercise of ajudicial discretion under section 438 is the larger interest ofthe state and the society. It is submitted that in cases of eco-nomic offences where the likelihood of repetition of the offencewhilst on bail cannot be foreclosed, such as :smuggling, hoarding;profiteering, indulging in manipulations of foreign exchange, etc.,it is not safe to exercise this power.

One should not forget that the issue of anticipatory bailarises at 'the very threshold or the early stages of investigation.Therefore, to require the investigation agency at that very stageto prove the guilt of the accused persons would be putting itunder a burden which would be impossibl to discharge. In suchcases, the court has to act on the incomplete report of the in-vestigation to reach at the relevant conclusions. It is suggest?.dthat in such situations the court should refrain from acting onmere hypothesis that no further serious material incriminating

Supra, n. 22.

Supra, n. 41.

Id., at p. 36 per Sandhawali J.

90 COCHIN UNIVERSITY LAW REVIEW 1182

the accused will be unearthed by the investigating agency, other-wise it should evaluate judiciously the material on record.

It will not be inappropriate to suggest that the benefits ofsection 438 should always be open to the petitioner, if he beable to prove to the satisfaction of the court that the accusationagainst him does not stem from ordinary reasons of furtheringthe ends of law and justice, but solely from some other dis-honest motive with the object of humiliating the petitioner andthat the charge levelled against him is mala fide. For instance,in a case of criminal breach of trust, where the petitioner canforthwith produce an, authentic documentary proof demolishingWholly the allegation of misappropriation against him, he is en-titled to the benefit of section 438. Similarly, in a serious chargeof murder if the petitioner is able to show his cast iron alibilike his having been confined in a jail at the material time ofthe commission of the crime, he would be entitled to the bene-fit of section 438. These instances are merely illustrative andnot exhaustive and help in making out a special ease for theexercise of power undersection 438. The discretion vested inthe higher echelons of the judiciary to grant anticipatory bail isto be exercised sparingly and only in special and exceptionalcases.

genesis of the concept of anticipatory bail

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