The term Anticipatory Bail Application (ABA) is not specified in the Criminal Procedure Code, 1973 (Cr. P.C), but the first use of that term can be found in the 41st Report of the Law Commission, 1969 (the report), where the Commission felt the need to provide a provision to protect an accused or any person who apprehends or assumes that he/she can be arrested for any non-bailable offense. Given this report and the serious need of the hour, Parliament added a pre-arrest bail under Section 438 provisions to the Act of 1973, with heading Direction for grant of the bail to person apprehending arrested.

Evolution Of Anticipatory Bail In Criminal Jurisprudence

The origin of the bail dates back to medieval times when the first recorded drafted constitution was adopted in 1215 by King John of England and was referred to as the Magna Carta as we know it today.

The origin of the bail was derivativea of clause 39 of the Magna Carta, which states that:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or restricted or exiled, or otherwise deprived of his status, nor shall we proceed with force against him or send others to do so, except by the lawful judgment of his equals or by the law of his equals.

It can be understood from the perusal of this provision that a person shall not be limited or confined unless and until the laws of the land have reached a final judgment. With regard to the careful reading and decoding of this clause, we can greatly relate to the provision of bail as provided for in the Criminal Procedure Code, 1973.

The older version of the Criminal Procedure Code, 1898 had no provisions for the Anticipatory Bail / Pre-Arrest bail. As mentioned above, the idea of anticipatory bail or pre-arrest bail was first recommended to Parliament only in the context of the 41st Law Commission report, which included the provision of Anticipatory bail / pre-arrest bail in Chapter 33 of the new Criminal Procedure Code, 1973 under section 438.

Section 438 Cr.P.C - Direction For Grant Of Bail To Person Apprehending Arrest

1. If any person has reason to believe that he or she will be arrested on charges of having committed a non-bailable offense, he or she may apply to the High Court or the Court of Session for directions under that section; and that court may if it finds appropriate, order that he or she be released on bail in the event of such arrest.
    
2. Where the direction referred to in sub-section ( 1) is drawn up by the High Court or the Court of Session, certain conditions may be included in certain directions, having regard to the facts of the particular case which it may consider relevant, including:
   
   1. A condition that the person make himself available to a police officer for interrogation as and when required,
   2. Provided that a person does not, directly or indirectly, induce, threaten or promise to dissuade any person familiar with the facts of the case from disclosing such facts to the court or any police officer,
   3. A condition that the person shall not leave India without prior permission of the court,
   4. Any other condition that may be levied according to section 437 of sub-section ( 3), as though the bail was issued according to that section.
       
3. If such a person is subsequently arrested without a warrant on such allegations by an officer in charge of a police station and is prepared either at the time of arrest or at any time in the custody of that officer for bail, he shall be released on bail; and if the Judge, who is aware of such an offense, determines that a warrant should be issued against that person in the first place.

Which Courts Have Original Jurisdiction To Entertain Anticipatory Bail Application

Where a person has an apprehension or reason to believe that he or she may be arrested on charges of having committed a non-bailable offense, he or she may request the High Court or the Court of Sessions to direct the investigating agency to release him or her on bail in case of arrest.

Discretion Of The Court To Grant Anticipatory Bail

Inappropriate cases, with due care and caution, anticipatory bail is generally exercised sparingly. Anticipatory bail may be granted under a few circumstances:

1. A special case is made out that would suggest that there are ample grounds to assume that the applicant may be detained for unreasonable grounds.
2. The allegations were made with a false intent or to cause the claimant to be injured/humiliated and arrested.
3. The arguments against the claimant are ambiguous or generic.
4. The name of the accused is not mentioned in the First Report on Information
5. The applicant satisfies the Court of Appeal granting the Anticipatory Bail that he is from a respectable family, has deep roots in society, and is not likely to abscond from or avoid the Court's proceedings or to hinder the investigation in any way.
6. A plaintiff is an influential individual against the defendant who is a weak person or if a case is brought against a political rival.

Refusal Of Anticipatory Bail

A few of the conditions under which Anticipatory Bail may be rejected are:

1. The risk of the applicant absconding if cognizance is taken by the trial court or the trial court has issued a warrant of arrest.
2. If it is possible to make the prima facie argument in which the claimant was charged.
3. The applicant has previously been imprisoned for any cognizable offense on conviction.
4. Where it is possible to make a case that the applicant can influence the investigation to his advantage.
5. When a reasonable claim to secure incriminating evidence is made in a case.

Factors To Be Considered To Grant Anticipatory Bail

A comprehensive and exhaustive list of considerations has been drawn up by the Hon'ble Supreme Court, building on those in Section 438(1), which are relevant to deciding whether to grant anticipatory bail. It is as follows:

1. Before making the arrest, the essence and seriousness of the charge and the exact position of the accused must be properly comprehended.
2. The applicant's record, including whether the accused was already incarcerated on indictment by a judge for any cognizable crime.
3. The applicant's ability to escape from justice.
4. The possibility of the accused's chance of repeating similar or other offences.
5. Where the charges are made purely to harm or humiliate the claimant by arresting him or her.
6. Effect of the grant of anticipatory bail, especially in cases of high severity involving a large number of individuals. The court must also clearly understand the accused's exact role in the case. In such cases in which the allegations were made u / s 34 and 149 of the IPC, the transparency of the court increases manifold.
7. A balance must be preserved between two considerations when hearing the pleadings for the issuance of anticipatory bail. Next, the courts ought to ensure that the issuance of anticipatory bail does not come at the detriment of the matter at hand being openly, reasonably, and thoroughly investigated. Secondly, the courts must ensure that there is no abuse, humiliation, and unfair imprisonment of the accused.
8. The court should accept the complainant's fair fear of tampering with the pieces of evidence and witnesses or fear of danger.
9. The utmost seriousness of prosecution shall always be considered and it is only the component of authenticity that must be considered when the issue is about granting of bail and in case there does persist any doubt as to the authenticity of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Conditions While Granting Anticipatory Bail

While granting anticipatory bail, the conditions laid down in subsection (2) may be imposed by the Sessions Court or High Court, which are as follows:

1. The accused should be available to a police officer for interrogation as and when required
2. The accused should not make any inducement, threat or promise, directly or indirectly, to any person familiar with the facts of the case, to deter him from disclosing such facts to the Court or to any police officer.
3. The accused could not leave India without the Court's prior permission;
4. Any other disability found acceptable by the court.

Recent Landmark Judgments On Law Of Anticipatory Bail

Sushila Agarwal v. State of Delhi: No time limit could be fixed while granting Anticipatory Bail

While deciding the landmark judgment viz., the Hon'ble Court was pleased to raise two questions:

1. Whether the immunity is given to a person under the Criminal Procedure Code, 1973, Section 438 should be limited to a fixed time to allow the individual to surrender before the court of trial and to obtain routine bail & bail
    
2. At the time and stage that the accused is called to court, whether the life of anticipatory bail should end.

The apex court's Constitutional Bench discussed the first question by holding that no time limit can be set by the court granting the same for the Anticipatory Bail. The five-judge bench held that the protection granted to a person under Section 438 Criminal Procedure Code 1973 should not always be restricted to a fixed period; it should inure in favor of the accused without any restriction on time.

Answering the second question, the Hon'ble Court held that the life or duration of an anticipatory bail order usually does not end at the period and phase when the accused is summoned by the court, or when charges are framed but can continue until the end of the trial. Again, if any special or particular characteristics require the court to limit the tenure of anticipatory bail, it is open to the court to limit the tenure of anticipatory bail.

In answering the second question, the Supreme Court was cautious in granting the court discretionary powers to limit the tenure of the Anticipatory Bail in the event of special or peculiar facts.

Badresh Bipinbai Seth v. the State of Gujarat: Not granting Anticipatory bail may cause a violation of the fundamental rights of an individual under Article 21 of the Constitution of India

In this case, the Hon'ble Supreme Court was pleased to hold that:
Article 21 of the Constitution defines the provision of anticipatory bail enshrined in Section 438 of the Code as relating to personal liberty. Therefore, this calls for a liberal interpretation of Section 438 of the Code pertaining to Article 21 of the Constitution. The Code explains that anticipatory bail is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in regards of which the direction is issued, he will be released on bail.

While observing the above, the supreme court celebrates and ties the two provisions together. The court noted that Section 438 and Article 21 go hand in hand and that the legislature has upheld the fundamental right of the citizen by enacting the provision for a grant for anticipatory bail.

Arnesh Kumar v. Bihar: Compliance of Section 41 (A) Cr.P.C is mandatory in case of offenses punishable with a maximum of 7 years imprisonment

The Hon'ble Supreme Court found it essential to note that the notice under Section 41A to be provided to the defendant if he is booked for a criminal offense for up to seven years in the Arnesh Kumar c. Bihar case while deciding on an application for ABA for offenses under Section 498A.

Vinay Potdar v. the State of Maharashtra: Rights of First Informant to intervene in Anticipatory Bail Application

In the case of, the Hon'ble High Court of Bombay held that if the victim of the crime had appeared before the court requesting permission to be heard, he or she would be granted the opportunity to be heard.

Nevertheless, the apex court took a slightly contrary view of what we addressed above in the case of Sundeep Kumar Bafna v. the State of Maharashtra 5. The court held that this review concludes that no vested right is granted to a plaintiff or informant or aggrieved party to conduct a prosecution directly. The comparative latitude is given to him as far as the Magistrate is concerned, but he must always bear in mind that while the prosecution must remain robust and thorough and reliable, it should not abandon the need to be comprehensive and effective.

As far as the Sessions Court is concerned, it is the Public Prosecutor who must remain in charge of the case at all times, and only the Public Prosecutor can be aided by a private party's lawyer in discharging his responsibility. However, at a crucial and important juncture of the proceedings, the complainant or informant or aggrieved party can be heard so that his interests in the case are not prejudiced or compromised.

Is it Mandatory for police to arrest a person only because his ABA is rejected?
The Hon'ble Supreme Court, in the case of M.C Abraham and Anr v. State of Maharashtra and Anr 6, has held that the police don't need to arrest an individual merely because his / her Anticipatory Bail has been refused.