Project On

ANTICIPATORY BAIL
&
WILL

Submitted to
Submitted By
Mr Sanjeev
Kumar Julka
Roll No. 41/11

VIIIth Semester
B.A.LL.B (Hons.)

PROJECT
REPORT

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Contents
Introduction3

Meaning..4

Object..5

Condition Precedent for making application..6

Bail and Anticipatory Bail: Distinction8.

Forum.....9
Consideration.9

Notice to Public Prosecutor10.

Blanket Order.11

Cancellation of Anticipatory Bail.13

Conclusion..14
Will
Drafting A Will

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Introduction
There can be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away from the
course of justice, any more than there can be a presumptions that the former are
more likely to commit a crime and the later are more likely to commit it. Lord
Russell said It was the duty of magistrate to admit accused person to bail,
whenever practicable, unless strong grounds for supposing that such person
would not appear to take their trial .It was not the poorer class who did not
appear, for, their circumstances were such as to tie them to the place where they
carried their work .They had not the golden wings with which they fly from
justice.
Section 438 of Code of Criminal Procedure 1973, makes provision enabling
the superior courts to grant anticipatory bail i.e. a direction to release a person
on bail issued even before the person is arrested. The Law Commission
considered the need for such a provision and observed:
The necessity for granting anticipatory bail arises mainly because
sometimes influential person try to implicate their rivals in false causes for the
purpose of disgracing them or for other purposes by getting them detained in
jail for some days. In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person accused of an offence 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.

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Meaning
The word anticipatory bail is not found in Section 438 or in its marginal
note. In fact anticipatory bail is a misnomer as it is not bail presently granted
in anticipation of arrest. When the court grants anticipatory bail, what it does
to make an order that in 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 bails
becomes operative.
It has also been held that anticipatory bail cannot be granted to a person to do
something which is likely to be interpreted as commission of a crime even if the

offender intended it as something in exercise of his rights. The expression

anticipatory bail is convenient mode of conveying that it is possible to apply
for bail in anticipation of arrest. The Section, however, makes no distinction
whether the arrest is apprehended at the hands of the police or at the instance of
the magistrate. The issuance of warrant by the Magistrate against a person
justifiably gives rise to such an apprehension and well entitles a person to make
1

a prayer for anticipatory. Issuance of summon for appearance also entitles an

2

accused to apply for anticipatory bail. Section 438 empowers the High Court
and the Court of Session to grant anticipatory bail i.e. a direction to release a
person on bail issued even before the person is arrested.

1
2

Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)

P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).

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Object
Under the old Code of 1898, there was a conflict of judicial opinion about the
power of court to grant anticipatory bail. Some High Courts were of the view
that the Court could grant such bail but the majority view was that there was no
such power in the Court. The law commission, therefore, in its Forty-first
Report recommended introduction of a provision to grant anticipatory bail
and stated the necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting them detained in
jail for some days. In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person accused of an offence is
not likely to abscond, or otherwise misuse his liberty while on bail, there seems
no justification to require him to first to submit to custody, remain in prison for
some days and then apply for bails.
Commenting upon the provision, the Law Commission, in its Forty-eighth
Report observed We agree that this would be a useful addition, though we
must add that it is only in very exceptional cases that such a power should be
exercised.

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Condition Precedent For Making Application

Before an application may be moved under this section(1) There must exist reasonable ground for the applicant to believe that he

may be arrested,
(2) Secondly, there must be accusation of a non-bailable offence against

him. The use of expression reason to believe shows that belief that
the applicant may be so arrested must be founded on reasonable ground.
Mere fear is not belief, for which reason it is not enough for the
applicant to show that he has some short of a vague apprehension that
someone is going to make an accusation against him, in pursuance of
which he may be arrested. The grounds on which the belief of the
applicant is based that he may be arrested for non-bailable offences must
be capable of being examined by the court objectively. Vague and general
allegations are not enough.
It was held in Joginder alias Jindi v. State of Haryana, that a petition for
anticipatory bail under Section 438 Cr.P.C. in relation to bailabe offence
is misconceived as Section 438 of Cr.P.C . related to non-bailable
offences. It was further observed that use of expression reason to
believe in Section 438 shows that the apprehension must be founded on
reasonable grounds and grounds must be capable of being examined. It
requires the mere fear of being arrested is not sufficient a sufficient
groung. It was also held that a blanket order that applicant shall be
released on bail whenever he is arrested for whichever offence
whatsoever cannot be passed. It was also pointed that direction under
Section 438 is to be issued at pre-arrest stage but it becomes operative
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only after arrest. The Court cannot restrain arrest . An interim order
restraining arrest if passed while dealing with application under Section
438 would amount to interference in investigation and therefore such an
order cannot be passed under Section 438. According to sub-section (3)
of this section if a person, who has been granted anticipatory, is arrested
without by an officer in charge of a police station and he is prepared,
either at the time of arrest or at any time while in the custody of such
officer, to give bail, he shall be released on bail.

MALIMATH COMMITTEE REPORT

Malimath committee has observed in its report that the provision as to
anticipatory bail has been misused by rich and influential people. The
committee however opined to retain the provisions subject to two conditions:
1-Public prosecutor should be heard by the court before granting an application
for anticipatory bail and
2- Petition for anticipatory Bail should be heard only by the court of
competent jurisdiction.
It may be stated that section 438 (1), as amended by the Code of
Criminal Procedure (Amendment) Act, 2005 now provides for hearing of
Public Prosecutor before granting an application for anticipatory bail.

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Ambit and Scope

Section 438 empowers a High Court and a Court of Sessions to grant anticipatory
bail. It is not as if bail is presently granted by the Court in anticipation of arrest.
But it means that in the event of arrest, a person shall be enlarged on bail. This
power is extraordinary in character and it is only in exceptional cases where it
appears that a person might falsely implicated, or a frivolous case might be
launched against him, or there are reasonable grounds for holding that a person
accused of an offence is not likely to abscond , or otherwise misuse his liberty
while on bail that such power can properly be exercised. This power being rather
unusual in nature, is entrusted only to the higher echelons of judicial service,
namely a Court of Session and a High Court. It is a power exercisable in case of an
anticipated accusation of non bailable offence and there is no limitation as to the
category of non bailable offence in respect of which the power can be exercised by
the appropriate court.

Bail and Anticipatory Bail: Distinction

The distinction between an ordinary bail and an anticipatory bail is that whereas
the former is available and granted after arrest, and therefore, means release of a
person from the custody , the latter is available and granted in anticipation of
arrest and is therefore is active at the very moment of arrest.
Again, there is no warrant for reading into Section 438 anything to limit the
discretion of the court by invoking the considerations mentioned in Section
437(1). The discretion has to exercise judicially by a High Court or Court of
Session considering the facts and circumstances of each case.
1. Balachand Jain v. State of MP, AIR 1977 SC 366.
2. Gurubaksh Singh v. State of Punjab AIR 980 SC1632
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Considerations:
As seen above, relevant considerations governing the discretion of the court in
granting anticipatory bail are materially different from granting bail to a person
who is arrested in the course of investigation or a person who is convicted and
his appeal is pending. Anticipatory bail to some extent extrudes in the sphere of
investigation of crime and the court, therefore, must be cautious and
circumspect in exercising such power. When a person is accused of serious
offence, such as murder, exceptional and compelling circumstances must be
made out for granting bail.

Forum
Section 438 confers concurrent jurisdiction of granting anticipatory bail on High
Court and Court of Session. The power being unusual in nature is entrusted only to
the echelons of judicial service. Some High Courts have taken the view that
ordinarily, a Court of Sessions must be first moved by an applicant. It is, however,
submitted that when concurrent power is conferred on the High Court as well as on
the Court of Session, no such restriction can be read in Section 438. Again, some
High Courts have held that after the Court of Sessions rejects an application, an
applicant cannot move the High Court for same relief unless circumstances have
changed. It is submitted that this view is erroneous.

In Chandra Erappa v. State, the High Court of Karnatka rightly observed:

Of course , there can be no doubt as that in the hierarchy, Court of Session is
subordinate to the High Court; a party who makes an application under Section
438 of the code before the Sessions Court could approach the High Court, if his
application had been rejected by the Court of Session, but not vice versa. In
other words, if the party chooses to file an application under Section 438 of the
Code before the High Court and it is rejected, he cannot thereafter approach the
court of Session under the same provision and on the same grounds

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Notice to Public Prosecutor

There is no provision in Section 438 for issuing notice to public prosecutor and
hearing by the court before granting anticipatory bail. However as held by the
Supreme court in Gur Baksh Singh v. State of Punjab , a notice should be
issued to the Public Prosecutor or the government advocate before passing final
order granting anticipatory bail. Therefore if there are circumstances justifying
ex parte interim order, the court may pass final order after hearing both sides.
It may, however may be stated that sub-section (1A) of section 438 as
amended by the Code of Criminal Procedure (Amendment) Act, 2005, now
expressly provides that before finally deciding an application for anticipatory
bail, the court will hear the Public Prosecutor.

Conditions
The high court and the court of sessions to which the application for
anticipatory bail is made can impose such conditions as the case may warrant.
The conditions mentioned in Section 438(2) are merely illustrative and not
exhaustive. The court while granting anticipatory bail must remember that the
investigation has not yet been completed and, therefore, it is the duty of the
court to ensure that the investigation should not be hampered or intervened with
in any manner.
The court however, cannot impose a condition other than warranted by law.
Thus, no direction can be issued to effect that the applicant, if arrested should be
released on bail provided he produces the alleged stolen property before the
investigating officer. Such order can be set aside by the High Court in revision
or by exercising inherent powers.

Duration
An order of anticipatory bail passed under Section 438(1) need not to be limited in
the point of time. The Court may, however, limit the operation of the order and
direct the applicant to obtain an order under Section 437 or Section 439 of the
code within that period. An order of anticipatory bail does not ensure till the
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end of trial, but must be for a limited duration till the trial courts has necessary
material before it to pass such orders as it thinks fit. Grant of unconditional
blanket protection is untenable and liable to be set aside.

Procedure
Section 438(2) is really a machinery provision for working out an order
passed under Section 438(1). It envisages a situation where the court decides to
proceed against the accused who has been granted anticipatory bail. All
subsequent steps must be in conformity with the order issued by the Court under
Section 438(1).

Blanket Order
A blanket order of anticipatory bail is an order which serves as a blanket to
cover or protect any and every kind of allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which, no concrete information can
possibly be had. Such a blanket order of anticipatory bail should not generally
be granted. Since the section requires the applicant to show that he has reason
to believe that he may be arrested, such belief must be formed only if there is
something tangible to go by on the basis of which it can be said that the
applicants apprehension is genuine. Normally, therefore, a direction should not
be issued under Section 438(1) to the effect that the applicant should be released
on bail whenever arrested for whichever offence whatsoever. A blanket order
of anticipatory bail is bound to cause serious interference with both the right
and the duty of the police in the matter of investigation because, regardless of
what kind of offence is alleged to have been committed by the applicant and
when, an order of bail which comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from arresting the applicant even
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if he commits, say, a murder in the presence of the public. Such an order can
then become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the
order was passed. Therefore, the court which grants anticipatory bail must take
care to specify the offence or offences in respect of which alone the order will
be effective.

Rules for exercising discretion

In Guru Baksh Singh v. State, the Full bench of Punjab and Haryana High
Court laid down certain principles as to when anticipatory bail should be
granted under Section 438 of the Code. Reversing the decision of the High
Court, the Supreme Court laid that Court has to decide the cases coming before
it after considering the facts and circumstances without laying down a cast iron
rule or adopting straight jacket formula. The court must be left free to grant or
refuse bail by exercising discretion judicially in the light of facts and situations
placed before it.

Successive Application
A second application after rejection of the first one under Section 438 is
maintainable if there are additional facts, further developments and/or different
considerations.

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Cancellation of Anticipatory Bail

Neither Section 438 nor any other section in the Code makes any clear
provision as to whether the order granting anticipatory bail can be cancelled
even before the regular bail is actually granted. However it has been held that
when Section 438 permits the making of an order and the order is made for
granting anticipatory bail, it is implicit that the court making such an order is
entitled upon appropriate consideration to cancel or recall the same. Thus, an
order of anticipatory bail granted by Court of Session can be recalled or
cancelled by that Court or by the High Court. But an order passed by the High
Court cannot be cancelled by the Court of Session.

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Conclusions
It is submitted that the following observations of Chandrachud CJ in
Gurbak Singh v. State lay down correct law regarding exercise of power to
grant anticipatory bail under Section 438 of the code, therefore are worth
quoting:
It cannot be laid down as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be actuated mala fides; and
equally, that anticipatory bail must be granted if there is no fear that the
applicant will abscond. There are several others considerations, too numerous to
enumerate, the combined effect of which must weigh with the court while
granting or rejecting anticipatory bail. The nature and seriousness of the
proposed charges, the context of the events likely to lead the making of charges,
a reasonable possibility of the applicants presence not being secured at the
trial, a reasonable apprehension that the witness will be tampered with and the
larger interests of the public or the State are some of the considerations which
the court has to keep in mind while deciding an application for anticipatory
bail.
Thus it can be said that there may be situations where arrest and detention may
be unjustified and these powers are sometimes misused. Therefore, a duty is
cast on the court in such situations to examine the facts carefully and to ensure
that no prejudice is caused to the investigation. It is delicate balance whereby
the liberty of the citizen and the operation of the criminal justice system have
both to be equally safeguarded. Where it is pointed out that the action is mala
fide or tainted the courts are required to do justice by preventing harassment
and unjustified detention. The court has to keep in mind while deciding an
application for anticipatory bail the nature and seriousness of the proposed
charges and the larger interests of the public or the state.

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