Concept of anticipatory bail

Reading time: 8-10 minutes.

In recent news, the Chairman of the Delhi Minorities Commission, Mr Zafarul Islam Khan moved the Hon’ble High Court of Delhi on 8 May 2020 seeking an anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code) and quashing of the FIR against him under Section 482 of the Code. In his petition, he has sought the said remedy by claiming that the case registered against him is frivolous and bad in law and his arrest is untenable. He has further prayed that the Hon’ble Court ensures that his mobile phone and laptop are not seized, and no coercive action is taken against him. He is being represented by Ms Vrinda Grover, Ms Ratna Appnender and Mr Soutik Banerjee. The next date of hearing finalised by the Hon’ble Court is 12 May 2020.

Mr Khan was booked under sedition after he uploaded a post on social media thanking Kuwait after the country had highlighted the issues of Muslims in India. It also stated that Kuwait’s gesture of solidarity is appreciated however Indian Muslims do not require external help. A week later, on May 6, the Delhi police arrested him from his residence.

Significance of the development

Mr Khan has claimed in his petition that the post was made in pursuance of his capacity as the Chairperson of the Delhi Minorities Commission to address rampant incidences of communalisation of the Covid-19 pandemic. He has submitted that the arrest is in violation of his freedom of speech as guaranteed by Article 19 of the Constitution and the media coverage was distorted to the point where the petitioner had to bear the brunt of public hatred. He has further claimed that he received no notice for interrogation. The police paid a visit to his residence and orally asked him to accompany them for interrogation, instead which is against Section 41A of the Code. which mandates that a written notice of interrogation needs to be given.

This development of application of anticipatory bail and quashing of FIR is significant as the petitioner is a 72 years old public servant who suffers from hypertension and heart disease. Moreover, the pandemic conditions in the country are an added worry for Mr Khan who, in his aged and already ailing state, is highly susceptible to the virus. In addition to this, the petition states that he needs to be granted protection from this allegedly coercive action to protect his liberty and right to life as guaranteed by Article 21 of the Constitution.

What is anticipatory bail?

Bail is the conditional or provisional release of a person who was held under legal custody in matters that are awaiting judicial pronouncement on the promise that they appear in Court as and when required. They also deposit security or collateral before the Court.

Anticipatory Bail is enshrined in Section 438(1) of the Code. This provision allows any person to seek bail in anticipation of an arrest after he is accused of committing a non-bailable offence. This direction to release on bail can be issued even before the arrest is made

Objectives and purposes

The object of arrest while under trial is to ensure the presence of the accused at all court hearings. If this presence can be reasonably ensured without detaining a said person, it would be unfair to deprive such person of his liberty while the criminal proceedings are ongoing. It relies on the principle of innocent until proven guilty. Anticipatory bail is a way to safeguard the right to personal liberty of a person to protect them from arbitrary arrests. This was held in the case of Gurbaksh Singh Sibbia vs State of Punjab (1980 AIR 1632) wherein the Hon’ble Supreme Court of India held that  Section 438(1) should be interpreted in the light of Article 21.

The Law Commission of India, in its 41st Report, reiterated the importance of the provision of anticipatory. It states that sometimes influential persons implicate their rivals in frivolous cases and with such cases rising, it is imperative for the Code to have a provision for anticipatory bail. It is only after this report that the provision was added to the Code. This was also held by the court in K. Gajendra Baidu Vs State of (A.P 1992 (3) ALT 27)

Legal provisions

 Simply put, Section 438 of the Code is the provision that talks about anticipatory bail. This term, however, is nowhere described in the Code. It can only be invoked when a person has been accused of committing a non-bailable offence. Anticipatory Bail can be granted by either the Court of Sessions or the High Court as per Section 438(1). No period for the limit of the order of anticipatory bail has been specified in said section. This also been reiterated in S Mhetre vs State of Maharashtra & Ors. ((2011) 1 SCC 694) wherein it was held that the duration of an order granting bail cannot be limited by time. The bail shall be in effect till the conclusion of the trial unless it is cancelled by the court as under Section 437(5) or Section 439(2) of the Code on grounds known to law. It is not mandatory that to apply for anticipatory bail, FIR must have been filed.

In Section 438 of Cr.P.C,

  1. The first part of the section sets out the conditions under which a person can make an application for anticipatory bail.
  2. The second part confers jurisdiction on the High Court or the Court of Session.

Anticipatory bail cannot be claimed as a matter of right, it is essentially a statutory right conferred long after the coming into force of the Constitution. The Court would grant or refuse anticipatory bail after taking into considering the following factors, namely

  1. The nature and gravity of the accusation.
  2. 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.
  3. The possibility of the applicant to flee from justice; and
  4. Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Section 438(2) enshrines the conditions that courts can impose while granting anticipatory bail. These are the conditions: –

  1. The person must ensure his availability for interrogation as and when required.
  2. The person must not try to influence witnesses.
  3. The person shall not leave India without obtaining permission from the Court.
  4. Any other conditions that can be imposed on a person who has been let out by way of regular bail.

Section 438(1-A) mandates that a notice be given to the Public Prosecutor, not less than 7 days, to allow them to present their case before the final order of anticipatory bail is issued.

Who can apply for anticipatory bail? – A person apprehending arrest by Magistrate for remanding him to custody under S. 209 can apply for anticipatory bail under Section 438. The expression of anticipatory bail is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.

This is an exceptional power and should be exercised only in exceptional cases and not in general cases. The consideration governing the exercise of discretion for granting anticipatory bail are materially different from those of an application for bail. Anticipatory is not to be granted as a matter of rule, should be granted only when a special case is made out and the Court is convinced that the person is of such a status that he would not misuse his liberty.

When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.

Critical analysis

A court needs to keep the following in mind before granting anticipatory bail

  1. The gravity of the accusations made and their nature.
  2. The previous history of the conduct of the accused person, if they have been convicted for some cognizable offence before etc.
  3. The possibility of the accused of fleeing.
  4. The role of the person in the commission of a said offence
  5. Chances of the said person influencing the investigation, tampering the evidence or intimidating the witnesses in any way.

It has been called an extraordinary power in various judicial pronouncements. This, however, does not mean that it must be permitted in extraordinary circumstances only. Any discretion granted to any authority needs to be carried out with care and circumspection dependent upon the facts and circumstances of the case and in the interest of justice. It must be granted cautiously and to safeguard the legitimate rights of the applicant. The power of the Court to grant anticipatory bail seems to be unguided. However, it needs to be exercised per limits enshrined in Section 438 of the Code that pertain to the power of granting bail.

A blanket order of anticipatory bail cannot be passed i.e. order of anticipatory bail cannot be of the effect that the applicant, whenever arrested, for any offence whatsoever shall be released upon such arrest. The applicant must disclose specific details and facts so that the court can judge the reasonableness of the apprehension of the arrest of the applicant. Mere fear cannot be a factor to grant anticipatory bail. The applicant, while making his case to obtain anticipatory bail, has to necessarily establish that he has reason to believe that he may be arrested.

This provision, however, is not devoid of controversy. It invites a lot of criticism for eating up precious judicial time with powerful persons accused of heinous crimes flooding courts with their anticipatory bail applications. Moreover, popular criticism calls it a facility only available to the rich and powerful, who can engage in hiring counsels. Even though there exists a fundamental right to gain legal counsel, it is available only after a person has been charged. In cases of applying for anticipatory bail, it is done before a person has been charged. The courts are largely silent on this. The Hon’ble High Court of Kerala ruled in Sreedharan T. and Ors. v. Sub Inspector of Police and Anr. (2009CriLJ1249) that anticipatory bail may be sought by seeking legal aid.


Anticipatory bail is one of the most hotly debated subjects in the Indian criminal system. While, on one hand, it is said to be the custodian of the fundamental right of life and liberty of an individual, it is also seen as a way to waste judicial time. In a country that already battles extreme pendency of cases, the stakes do seem high.

Arbitrary and motivated arrests are an unfortunate reality in India and are only rising. Therefore, it would not be wise to strike down the provision of anticipatory bail as doing so would be detrimental to the guaranteed right of liberty. What is essential is that a balance always is maintained between the personal liberty of an individual and the need to maintain law and order in society. The courts should exercise their discretion wisely and in ways that are just and fair, keeping in mind the principles of natural justice.

Author: Mannat Marwah from Symbiosis Law School, NOIDA.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

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