What is Bail?

Black's Law Dictionary (4th edition) describes 'bail' as procuring "the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court."

In the 1973 case Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhury[1], the Calcutta High Court explained the principle behind giving bail:

• The law of bails has to dovetail two conflicting demands, namely:
  • On one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime;
  • On the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.
• As opposed to ordinary bail, granted to a person under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest is made.
   
• S. 482 lays down the law on anticipatory bail:
  • 482 (1) of the provision reads: 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.
  • The provision empowers only the Sessions Court and High Court to grant anticipatory bail.
  • Anticipatory bail became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898) after the 41st Law Commission Report of 1969 recommended the provision's inclusion:
    • The report said, The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases to disgrace them or for other purposes by getting them detained in jail for some days...
    • Apart from false cases, where there are reasonable grounds for holding that a person accused of an offense is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
       
• In the 1980 Gurbaksh Singh Sibbia vs. State of Punjab case:
  • A five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).
  • It also observed, It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character...
    • But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character.
    • We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.
       
• State (CBI) v. Anil Sharma (1997):
  • The grant of pre-arrest bail at this stage would elude the investigation's success as the accused knows he is protected by the order.
  • The Court further noted that granting pre-arrest bail in economic offenses would hamper the investigation.
  • The bench observed, Anticipatory Bail cannot be granted as a matter of right. It has to be exercised sparingly, especially in economic offenses that constitute a class apart.
     
• P Chidambaram v. Directorate of Enforcement (2019):
  • Delhi High Court refused to grant anticipatory bail in a case alleging money laundering in the FDI transaction of INX Media.
  • The appellant was accused of receiving 'kickbacks' for FIPB clearances for FDI of INX media.
  • The High Court of Delhi refused the application, observing, It is a classic case of money laundering.
  • The learned judge noted, Considering the gravity of the offense and the evasive reply given by the appellant while he was under the protective cover of the Court are the twin factors which weigh to deny pre-arrest bail to accused.
  • Rejecting the anticipatory bail plea, a bench of Justices R. Banumathi and A.S. Bopanna said the power to grant anticipatory bail was an extraordinary power that had to be used sparingly, and in exceptional cases, more so in economic offenses as they affect the economic fabric of society.
  • In its order, the Supreme Court said, Anticipatory bail is not to be granted as a matter of rule, and to be granted only when the court is convinced that exceptional circumstances exist to resort to that remedy.

Judicial discretion

• The legislature grants broad discretion to the High Court and the Sessions Court by including the term may if it thinks fit in Section 438.
• There can be no straitjacket formulae for the exercise of power under Section 438.
• Any attempt to lay down a cast-iron rule by generalizing will adversely hamper the applicant's interest.

No Anticipatory Bail after Arrest

• The Court held clearly that the provision of anticipatory bail is to grant bail before the applicant's arrest.
• Once the applicant is arrested, he can apply for bail under Section 437 or 439 of the CrPC but not under Section 438.

Conditions while granting anticipatory bail

• S. 482(2) reads: 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 to dissuade him from disclosing such facts to the Court or any police officer;
  3. a condition that the person shall not leave India without the previous 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.

Key points laid down by the Court

• Applications for anticipatory bail must be based on concrete facts, not vague allegations.
• Anticipatory bail applications can be filed even before an FIR is registered if there is a clear threat of arrest.
• Depending on the seriousness of the threat, courts can issue notice to the public prosecutor and may grant interim anticipatory bail.
• The Court is not obligated to impose time limits on anticipatory bail and can grant it up to the conclusion of the trial.
• Anticipatory bail orders should not be blanket and cannot cover future offenses.
• The bail does not limit the rights of the police or investigating agencies, who can seek to arrest the accused if necessary.
• Appellate courts can review the correctness of anticipatory bail orders without seeing them as cancellations of bail.
• The judgment clarified that no statutory time limit exists for anticipatory bail, and the Court can impose conditions if necessary.

End Notes:

1. Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhury
2. 1980 (2) SCC 565
3. INSC 702 (3 September 1997)
4. 2020 CRI LJ (NOC) 80
5. AIR 2020 Supreme Court 831
6. AIR 2011 Supreme Court 312