Q. What is meant by “anticipatory bail”?
Ans.: The words “anticipatory bail” is not found in Section 438 of Cr.P.C but that is clearly the subject with which the section deals, in fact anticipatory bail is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. In simple word it can be said that anticipatory bail means bail in anticipation of arrest.
Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order it may include such conditions having regard to the facts of the particular case, as it may deem appropriate.
S. 438(1) of Cr.P.C. comprises of two parts. The first part, envisages of the conditions under which a person is entitled to make an application for anticipatory bail in the Court of Session or in High Court. There are only two conditions which must exist before he can move such an application. In the first place there must exist a ground to believe that he may be arrested and secondly there must be an accusation of his having committed a non-bailable offence. The language is plain and unambiguous. It clearly contemplates two forums for moving an application for anticipatory bail, namely the Court of Session and the High Court. Both the jurisdictions are concurrent and it is left to the person concerned to choose either of the two. The second part enables the High Court or the Court of Session, as the case may be, to give a direction for his release. The provision read as a whole does not prima facie create any bar that he must apply to the Court of Session first before coming to the High Court to seek his redress.
When 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.
In case of SIDHHARAM MHETRE V/s. STATE OF MAHARASTRA reported in 2011 (1) GLH 11 Hon’ble Supreme Court observed and held that, ” We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all “the legislature in, its wisdom” has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected”.
In case of GURBAKSH SINGH SIBBIA AND OTHERS V/s. STATE OF PUNJAB reported in 1980 (2) SCC 565 the Constitutional Bench of Hon’ble Supreme Court observed and held that, “Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence.”