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COURTS OF PRACTICE: DISTRICT & SESSIONS COURT, HIGH COURT AND SUPREME COURT OF INDIA 

(Section 438 Cr.P.C)

1. PRELUDE :

Anticipatory bail is a protective measure that can be sought by a person who is fearing an arrest in connection with a complaint wherein the offenses arrayed are non-bailable. 

II. SECTION 438 CR.P.C PERTAINS TO DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST.

(1) 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) 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:

1. a condition that the person shall make himself available for interrogation by a police officer as and when required,
2. 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,
3. a condition that the person shall not leave India without prior permission of the court,
4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).

III.     IMPORTANT CASE LAWS ON ANTICIPATORY BAIL 

1. NO TIME LIMIT TO BE FIXED FOR GRANT OF ANTICIPATORY/PRE-ARREST BAIL: 

Citation: (2020) SCC ONLINE SC 98:- Sushil Agarwal vs State of Delhi:-

1. The Constitutional bench of Supreme Court held that " 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” .
2. “The 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”.

1. Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with maximum 7 years imprisonment

CITATION:  AIR2014SC2756  ARNESH KUMAR VS STATE OF BIHAR 

1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498 A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for Further detention;
4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;
8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

1. FACTORS AND PARAMETERS TAKEN IN TO CONSIDERATION OF AN ANTICIPATORY BAIL APPLICATION:
2. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
3. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
4. The possibility of the applicant to flee from justice;
5. The possibility of the accuseds likelihood to repeat similar or the other offences.
6. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
7. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
8. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
9. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
10. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
11. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

By RAJAGOPALAN SRIPATHI

BY CHETNA REDDY.