Arrest bring humiliation, curtail freedom, and casts scare forever. Arrest should not be made only because the offence committed is cognizable and bailable. There was drastic increase in a cases nowadays which were file by a powerful person with a motive to implicate their rival in a fake cases with a motive to disgrace them or make them undergo imprisonment for somedays¹.

To avoid such restriction on freedom and to ensure the liberty of a person, the law commission in its 41st report recommended for the want of provision for anticipatory bail. As such provision were lacking in the code of criminal procedure 1898 (old code). The central government accepted the recommendation of 41st la w commission of India and introduced clause 447 in the draft bill of 1970 to ensure the provision of anticipatory bail.

Bail And Its Types:

As the definition of the bail was lacking in the code of criminal procedure 1973. Bil has been defined in the law lexicon as security for appearance of accused person on giving which he is released pending trial or investigation.

The object of arrest and detention of accused person is primarily to secure his presence before the court at the time of trial and ensure that when he was found guilty he available to receive sentence².

It would be unjust and unreasonable to deprive the accused of his liberty when his presence and appearance can be ensured otherwise than his arrest. The aim of provision of bail are to ensure the presence of accused without unreasonable and unjustifiably interfering his liberty.

Types of Bail

There are the following types of bail:

• Regular bail: This is the most common type of bail and is granted to a person who is already in custody.
• Interim bail: This is the temporary bail granted by the court while an application for regular or anticipatory bail is pending.
• Default bail: It is a right to bail granted to an accused person when the police fail to complete the investigation within a specified time period.
• Anticipatory bail: This means bail in anticipation of arrest.

Anticipatory Bail

As the term anticipatory bail is not defined either under the Criminal Procedure Code, 1973 (old statute) nor under the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) (new statute). Even the term anticipatory bail was not used in both analogous sections as mentioned above. The term anticipatory bail, as held in the case of Bal Chander Jain vs. State of M.P., means bail in anticipation of arrest. In fact, the term anticipatory bail is a misnomer as it is not a bail presently granted in anticipation of arrest. When the court grants anticipatory bail, it means making an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail until the person is arrested. Therefore, the order of anticipatory bail becomes operative when there is an arrest.

Object of Anticipatory Bail

To secure liberty and freedom, to prevent an accused from humiliation in false cases, or in cases where the appearance of an accused shall be ensured during trial and, if found guilty, for punishment.

Interpretation of Section 438 CrPC, 1973 vis-à-vis Section 482 BNSS, 2023

Where any person has a reasonable apprehension (not mere apprehension) that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the concerned high court or the court of session for direction under Section 438(1) CrPC (now 482(1) BNSS) that in the event of such arrest, he shall be released on bail. The high court or, as the case may be, the court of session may:

• Consider the following factors:
  • Nature and gravity of accusation.
  • Antecedents of the applicant regarding any criminal cases.
  • Possibility of the applicant or accused fleeing from justice.
  • Whether the accusation was made with a motive of humiliating and injuring the person by having them arrested.
• Either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Proviso of Section 438(1) CrPC

If the high court or, as the case may be, the court of session either rejects or does not issue an interim order, the officer in charge of the police station is free to arrest without warrant such person on the basis of accusations apprehended in the anticipatory bail application. Note: No such proviso is provided under Section 482(1) BNSS.

Subsection 1A and 1B

Subsection 1A: Where the court issues an interim order, it shall forthwith cause a notice to the public prosecutor and superintendent of police not less than seven days, with the objective of giving the public prosecutor a reasonable opportunity to be heard when the anticipatory bail application is heard and finally disposed of. The presence of the applicant at the time of final hearing and making the final order is obligatory under Section 1B of Section 438 CrPC. Note: Both subsections 1A and 1B were deleted in the new statute, BNSS, 2023.

Subsection 2

Subsection 2 of Section 438 CrPC and Section 482(2) BNSS are identical and describe the conditions that the high court or the court of session may impose while granting anticipatory bail. The conditions include:

• The person shall make themselves available for interrogation by police officers as and when required.
• The person shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or police officer.
• The person shall not leave India without prior permission of the court.
• Such other conditions as may be mentioned under Subsection 3 of Section 437 CrPC (480(3) BNSS, 2023), as if the bail were granted under that section.

Subsection 3

Subsection 3 of Section 438 (482(3) BNSS, 2023) states that if such a person is arrested after the grant of direction under Subsection 1 of Section 438 (482(1) BNSS, 2023), then they shall be released on furnishing bail of the mentioned amount to the police officer concerned. If the magistrate wants to issue a warrant, in such cases, they have to issue a bailable warrant in the first instance in conformity with the direction of the court under Subsection 1 of the said section.

Subsection 4

Subsection 4 of Section 438 (482(4) BNSS, 2023) states that anticipatory bail shall not be granted in cases involving the following offences:

• Rape of a minor woman below 16 years of age.
• Rape of a minor woman below 12 years of age.
• Gang rape of a woman below 16 years of age.
• Gang rape of a woman below 12 years of age.

Note: In BNS 2023, section 376 (3) and section 376 AB IPC were merged in one section in BNS i.e., section 65 BNS under two subsection whereas section 376 DA and section 376 DB were dropped off and age which were 16 and 12 years respectively in old statutes were now in the new statue were increased to 18 years.

Section 482 BNSS: Widening Discretionary Power of Court Hearing Anticipatory Bail Application

Parish Trivedi v. State of Chhattisgarh

(Decided on 23 September, 2024, Chh. HC) The court stated that the present bail application was preferred under Section 482 of BNSS, and it was relevant to note the difference between Section 428 BNSS and the pari materia provision of Section 438 of CrPC.

The court observed that under Section 438 of CrPC there were several guiding factors which were needed to be considered while granting anticipatory bail. However, the new provision, i.e., Section 482 BNSS, deleted the guiding factors which the court hearing anticipatory bail application might have taken into account, such as:

• Nature and gravity of accusation
• Criminal antecedent
• Possibility of the accused to flee from justice

This deletion widens the discretionary power of the court hearing such bail applications.

Guidelines for Granting Anticipatory Bail

Gurbaksh Singh Sibbia v. State of Punjab

• The applicant must show that they have "reason to believe" they may be arrested for a non-bailable offence. The expression "reason to believe" indicates that the belief must be founded on reasonable grounds. Mere "fear" is not sufficient.
• If an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. The decision cannot be left to the Magistrate under Section 437 of the CrPC.
• The filing of an FIR is not a condition precedent to exercising the power under Section 438. A reasonable belief of likely arrest can exist even without an FIR.
• Anticipatory bail can be granted after an FIR is filed, as long as the applicant has not been arrested.
• The provisions of Section 438 cannot be invoked after the arrest of the accused. Post-arrest, the accused must seek bail under Section 437 or Section 439.
   

Tenure of Anticipatory Bail

Sushila Agrawal v. State (NCT of Delhi) The five-judge bench of the Supreme Court unanimously held that the life of an anticipatory bail does not end when the accused is summoned or charges are framed but can continue till the end of the trial. However, the court can limit the tenure if special conditions necessitate it.

Court Competent to Grant Anticipatory Bail

• High Court and the Court of Session have concurrent jurisdiction to hear and grant anticipatory bail.
• It is generally advisable to first approach the Court of Session. The High Court may not entertain anticipatory bail applications directly, except in special cases.
• If the Court of Session rejects the application, the High Court can be approached as a matter of right. If the High Court also rejects it, a petition can be filed in the Supreme Court via a Special Leave Petition under Article 136 of the Constitution.
   

Rejection of Anticipatory Bail Application

Section 438(1) CrPC provides for the rejection of anticipatory bail applications by the Court of Session or the High Court if deemed fit. However, such provisions for outright rejection were deleted under Section 482 BNSS. Grounds for rejection of anticipatory bail applications may include:

• Severity of the charge
• Possibility of fleeing from justice
• Procedural error
• Weak grounds

Cancellation of anticipatory bail
It was open to the court which granted the anticipatory bail to accused/applicant to cancel it if any of the condition of bail was violated by the accused/appellant or the court think fit to do so on application given by the state.

Anticipatory bail and section 18 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 states that nothing contained in the section 438 CrPC (now section 482 BNSS) were application for offence under section 3 of this act. Meaning thereby that no anticipatory bail is granted to the accused of offence punishable under this act.

But in the recent judgement of the case Shajan Skariah vs. State of Kerala , the supreme court while granting anticipatory bail in an FIR registered under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the apex court states that if the necessary ingredient to constitute and offence under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 are not made out, anticipatory bail can be granted.

Conclusion:
The present legal position, despite section 18 of the SC/ST act, if the case under the said act was prima facie not made out the court can grant anticipatory bail

Some Important Case Law:

• Dhanraj Ashwani v. Amar S. Mulchandani
  
  (Decided on 9 September, 2024) In this case, the three-judge bench of the Supreme Court ruled that while the accused was already in custody for one offence, they can file for anticipatory bail for another offence alleged to be committed by them.
   
• Prince v. State (NCT of Delhi)
  
  2024, Delhi HC Anticipatory bail application can be filed under BNSS even if FIR was registered under IPC.
   
• Md. Ashfaq Alam v. State of Jharkhand and Anr The Supreme Court stated that once the charge sheet was filed and there was no impediment at least on the part of the accused, the court, having regard to the nature of the offence, the allegation, and the maximum sentence the offence was likely to carry, ought to have granted bail as a matter of course.

CrPC 1973 vis-a-vis BNSS 2023

• Section 438 (1) CrPC provides various factors to be taken into consideration while hearing and granting anticipatory bail. In contrast, BNSS section 482 (1) does not mention such factors.
   
• In CrPC, the proviso of section 438 (1) allows a police officer in charge of a police station to arrest the accused where no interim order was passed or the application was rejected. However, BNSS section 482 (1) does not contain such a proviso, effectively removing this right from the officer in charge.
   
• Under CrPC, a minimum seven days' notice was mandatory for the public prosecutor and superintendent of police in cases where there was an interim order regarding anticipatory bail or if the application was rejected. No such provision exists in section 482 of BNSS.
   
• In CrPC, no anticipatory bail is granted for gangrape of women under 16 years of age. In BNSS section 482, the age limit has been increased to 18 years.

Conclusion
The provision for anticipatory bail was in section 438 of CrPC 1973 whereas in BNSS 2023, it was in section 482.

The two prerequisites for filing anticipatory bail application were:

1. Commission of non-bailable offence.
2. Reasonable apprehension of arrest.

Once the anticipatory bail was granted, the accused shall be released on bail till the conclusion of trail.

High court and the court of session are the courts competent to grant anticipatory bail to an accused.

There were major changes in the new statute i.e., BNSS from old statute, that is CrPC regarding anticipatory bail provision. BNSS widen the discretionary power of a court hearing the anticipatory bail application as it deleted the factor that were taken into consideration while deciding whether the anticipatory bail be granted or not.

The dispute regarding the tenure of anticipatory bail was now well settled that it was valid till the conclusion of the trial except where the court thought to cancel it before the conclusion of the trial in order to ensure that justice is delivered.

References:

1. (2024) 8 SCC 273
2. R.V. Kelker Criminal Procedure 7th edition
3. 2024 SCC OnLine Chh 9354
4. (1980) 2 SCC 565
5. https://www.drishtiias.com/printpdf/anticipatory-bail-2
6. https://www.newindianexpress.com/opinions/2024/Sep/19/the-other-law-with-stringent-bail-rules
7. https://hindi.livelaw.in/supreme-court/accused-in-custody-can-seek-anticipatory-bail-for-another-case-supreme-court-268979
8. https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-bnss-anticipatory-bail-after-july-1-fir-ipc-263897
9. (2023) 8 SCC 632

Written By: Nitish Singh, student of LL.B. (Hons.) at Banaras Hindu University