For a human being, liberty is an invaluable asset. It is founded on the bed rock of constitutional rights. In essence, it is an inherent right. Some even consider it to be the grammar of life. Nobody wants to give up their freedom or exchange it for all the world's riches. The center of any civilized community is the sacredness of liberty. It is a fundamental principle that underpins civilization. Deprivation of liberty of a person has enormous impact on his mind as well as its body.

Consequently, the idea of bail becomes pivotal in criminal jurisprudence. The concept of bail is an essential component of the Indian criminal law and is a widely accepted notion in all legal systems worldwide. In legal terms, bail refers to the process of obtaining the release from custody of an individual who is awaiting trial or an appeal by depositing security to guarantee his timely submission to the appropriate authorities.

The court with jurisdiction over the prisoner sets the monetary value of the security, sometimes referred to as the bail or, more precisely, the bail bond. The security is forfeited if the person freed on bail doesn't turn themselves up at the scheduled time. In the ensuing article, an attempt is made to iterate various legal aspects associated with the concept of "Anticipatory Bail".

The term "bail" is not defined in the Code of Criminal Procedure Code, 1973. However, it provides definition for Bailable Offences and Non-Bailable Offences. According to Section 2(a) of the code, "bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence". There was no provision for the grant of anticipatory bail in the code of 1898. However, the criminal procedure code of 1973 contains specific provisions dealing with the concept of anticipatory bail.

Section 438 of the Criminal Procedure Code deals with the Direction for grant of bail to a person apprehending arrest. Accordingly, 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. Moreover, the High Court or the Sessions Court, while deliberating over an application for grant of an anticipatory bail may consider following factors, in addition to the facts of the case, namely -

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 the previous permission of the Court;
4. any other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

Honorable Supreme Court of India in the case of Gurbaksh Singh Sibbia versus State of Punjab, AIR 1980 SCC 1632: (1980) 2 SCC 565: 1980 SCC (Cri) 465: 1980 CrLj 115: 1982 CrLR (SC) 475 postulated the guideline to be followed while granting anticipatory bail to a person who have been accused of committing a non-bailable offence. The power under section 438 is not ordinary in nature and it cannot be exercised in a regular manner. It does not authorize grant of blanket anticipatory bail for offences not yet committed or allegations not yet leveled.

Moreover, the power under this section is not unguided or un-canalised. All the limitations that were imposed while reading of section 437 are also applicable to section 438. In order for the court to properly specify the offence for which the order will be effective and avoid issuing a blanket order, the applicant must demonstrate by revealing specific facts and events that he has reason to believe, the existence of which is sine qua non for the court, to exercise its power. This is not to say that the applicant should not have vague apprehension of being arrested for a non-bailable offence.

Moreover, the operation of the order must be limited for a period of time. If the court is of the view that the allegations are made with some ulterior motive and with an intention to injure or humiliate the applicant, then the court may be inclined to allow the application for grant of anticipatory bail. The authority under Section 438 should not be used if the investigating agency can demonstrate a valid case for the offender's remand to police custody under Section 167(2) or a plausible claim to obtain incriminating material from information likely to be obtained from the offender under Section 27 of the Evidence Act.

The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless. Moreover, if the public interest requires that the discretion granted by Section 438 of the Code should not be used in grave situations, such as economic offenses involving obvious corruption at the highest levels of the political and executive branches, then the court may decline to provide any relief thereof.

Most importantly, an order granting anticipatory bail does not, directly or in-directly, impede the police's ability and right to conduct an investigation. Also, nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, 1860.

In the case of M. Sreenivasulu Reddy versus State of Tamil Nadu, (2002) 10SCC 653: 2004 SCC (Cri) 1142, it was observed that the Court has to remain vigil while exercising the powers pursuant to Section 438. The accused's past behavior, his assets in the nation, and other factors can all be used by the court to determine whether or not they will abscond or otherwise misuse their freedom when exercising jurisdiction under Section 438 Cr. PC. However, even though the court may impose any conditions it sees fit when granting such anticipatory bail, the primary objective of those conditions should be to preclude the accused from potentially impeding the investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion.

"In an offence under Section 409 and 420 IPC, the Court is certainly not going to recover the alleged amount as a condition of grant of bail. This being the position, since the High Court had directed the payment of aforesaid money on the basis of the undertaking given by the accused, we would not modify that part of the order and, therefore, the accused would be required to pay the balance sum of Rs. 15 crores within a period of four weeks from today."

Also, in the case of Amarjit Singh Versus State of NCT of Delhi, JT 2002 (1) SC 391 : 2002 (2) Supreme 249 : 2002 (1) SLT 799, it was held that Imposition of conditions for grant of anticipatory bail is unreasonable. It iterated "we have no hesitation in coming to the conclusion that the imposition of condition to deposit the sum of Rs. 15 lacs in the form of FDR in the Trial Court is an unreasonable condition and, therefore, we set aside the said condition as a condition precedent for granting anticipatory bail to the accused/appellant.

We accordingly allow this appeal and set aside the condition imposed by the learned Additional Sessions Judge to deposit the sum of Rs. 15 lacs in the form of FDR in the Trial Court, and on the other hand direct that on executing a bond to the tune of Rs. 25,000/- with two solvent sureties to the satisfaction of the concerned Magistrate, and further that the accused shall make himself available for interrogation whenever is required and the accused should surrender his passport immediately to the concerned Magistrate where the matter is pending and would not leave this country without appropriate permission from the Court, he would be entitled to the order granting him anticipatory bail."

In the case of Sunita Devi versus State of Bihar, 2005 SCC (Cri) 435 (439), it was observed by the apex court "an order of anticipatory bail does not ensure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the cases and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application.

In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire."

Thus, from the above discussion it is clear that though the High Court and the Sessions Court has discretionary powers under section 438 of the criminal procedure code, the same has to be exercised in an astute manner.