Anticipatory Bail a word widely used in parlance of litigation but which does not owe its origin to a statute. Neither section 438 of Cr.P.C nor its marginal note so describes it but, the expression ‘anticipatory bail’ is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.
In fact ‘anticipatory bail’ is a misnomer. It is not a bail presently granted by the Court in anticipation of arrest. When the court grants anticipatory bail it means is that in event of arrest the person shall be released on bail.
The conflict of judicial opinion whether a High Court had inherent powers to make an order of bail in anticipation of arrest and the need to curb the acts of, influential persons trying 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 were the necessities, carved out by Law Commission of India in its 41st Report to introduce provision relating to Anticipatory bail.
As most things have a dark side so do this provision of the code. The object behind enacting this law was to prevent the innocent from getting trapped but with time the picture has changed and now persons accused of heinous offences and even habitual offenders are invoking it repeatedly, which was not the intent of the relief sought to be given by this section.
Historically, the Code of Criminal Procedure, 1898 (old Code) did not contain specific provision corresponding to Section 438 of the present Code of 1973. Under the old Code, there was a sharp difference of opinion amongst various High Courts on the question whether a Court had inherent power to make an order of bail in anticipation of arrest. The preponderance of view, however, was that it did not have such power.
The expression anticipatory bail has not been defined in the Code and is a misnomer inasmuch as, it is not as if bail presently granted in anticipation of arrest. Where a competent court grants `anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail.
The power of granting `anticipatory bail’ is extraordinary in character and only in exceptional cases where it appears that a person is falsely implicated or a frivolous case is 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, such power is exercised. Therefore, the power being `unusual in nature’ is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and a High Court.
An order of anticipatory bail constitutes, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it 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 respect of which the direction is issued; he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an extraordinary character this would not justify the conclusion that the power must be exercised in exceptional cases only.
It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. No straight jacket formula can be prescribed for universal application in cases of anticipatory bail as each case has to be considered on its own merits and in its facts and circumstances. Personal liberty being a very precious fundamental right should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.