ANTICIPATORY BAIL – AMENDMENTS AND JUDICIAL INTERPRETATION OF SECTION 438
– Harsha Mangnani1
‘Anticipatory bail’, a word broadly utilized as a part of speech of prosecution, yet which does not owe its root to a statute. Neither Section 438 of Cr.P.C. nor its minimal note so depicts it, at the same time the expression ‘anticipatory bail’ is an expediant method of passing on that it is conceivable to apply for safeguard fully, expecting capture. Indeed ‘anticipatory bail’ is a misnomer. It is anything but a safeguard which is conceded by the court in anticipation of arrest. When the court grants anticipatory bail, it means that in the event of arrest the person can be released on bail. The contention of judicial opinion is that whether a High Court have inherent powers to make a request of bail in anticipation of arrest and the need to control the demonstrations; of persuasive people attempting to ensnare their adversaries in false cases to disgrace them or for different purposes by getting them confined in prison for some days were the necessities, by Law Commission of India in its 41st report to introduce provision relating to anticipatory bail.The Law Commission in its 48th report in the year 1972 prescribed acknowledgment of recommendation. The protest ofArea Section 438 is to prevent undue harassment of the accused people by pre- trial arrest and detention.
The Code of Criminal Procedure, 1898 did not contain any particular provisions relating anticipatory bail which was later introduced in Section 438 of Code of 1973. Under the Code of 1898, there was a snappy difference among the opinion of different High Courts, on the inquiry whether a court have inherent power to hear a request of bail in anticipation of arrest? The strength of view, in any case, was that it doesn’t have such power2.
The Law Commission of India, in its 41st Report dated September 24, 1969, suggested the need of presenting a provision in the Code of Criminal Procedure empowering the High Court and the Court of Sessions to permit anticipatory bail. In para 39.9 of its report (Volume
I) it was written that3:
1 B.A.LL.B., VIIth Sem., Indore Institute of Law
2 Savitri Agarwal V State of Maharashtra (SC: 2009)
3 Law Commission of India 41st Report, September 1969, ‘The Code of Criminal Procedure, 1898 Volume I’, para 39.9; pp. 320-321
“The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. In spite of the fact, that there is a conflict of judicial opinion about the power of a court to allow anticipatory bail, the greater part is that there is no such power under the existing provisions of the Code.”
The need for giving anticipatory bail emerges mostly in light of the fact that occasionally persuasive people attempt to embroil their adversaries in false cases to disgrace them or for different purposes by getting them confined in prison 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.
In para 31 of its 48th Report, the Law Commission recommended acceptance of the suggestion and made the following comments on the aforesaid clause4:
“The bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one.”
Further, the relevant Section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary for the interests of justice. It will also be convenient to provide that notice of the interimorder as well as of the final orders will be given to the Superintendent of Police forthwith.
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 arrest5.
4 Law Commission of India 48thReport,July 1972’Some question under the Code of Criminal Procedure Bill, 1970′
5 Balchand Jain v. State of M.P (SC: 1976)
Where a competent court grants `anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail6. 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 filed 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 level of judicial service, i.e. a Court of Session and a High Court.
An order of anticipatory bail constitutes, protections 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”. Adirection under Section 438 is intended to confer conditional immunity from this ‘touch’ or confinement.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest7 and thus means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest . Police custody is an inevitable concomitant of arrest for non-bailable offences. The grant of”anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
6 Gurbaksh Singh Sibbia v State of Punjab (AIR)(SC :1980)
7 Sunita Devi v State of Bihar (SC: 2005) (Cri)
NATURE OF AN ANTICIPATORY BAIL
The Human Rights movement has claimed that no person should be kept in custody until and unless he/she has been proven guilty of an offence. This became a huge challenge to both the legislators and the executives. As a result, the idea of anticipatory bail came into existence. Section 438 was introduced for the same purpose. The idea is when a person has a reasonable ground to apprehend his arrest for a non bailable offence and he needs to prevent it, he can approach the appropriate court which will then grant him anticipatory bail.
The statute does not state under what specific condition the anticipatory bail would be granted. This is on the grounds that the thought was to give this duty to the courts so that they could use their discretion to decide whether to grant the bail or not. To avoid misuse of this advantage, the Law Commission made the initial order an interim order and the final order would be given only after the public prosecutor had given a notice8. Anticipatory bail is a way of settling arrangements related to custody between the accused on one side and the court and police on another side and still ensures that the accused is available when he/she is required to carry out any formalities required for justice to be served. In the case ofState of M.P. v. R.K. Balothia, the Supreme Court held that “Anticipatory bail is only a statutory right and not an element of Article 21 ofthe Constitution. This can be rightly said as it came into effect much later compared to the making of the Constitution”9.
AIM OF ANTICIPATORY BAIL
The main aim is not to let a person suffer because of dishonor or disrespect. The main aim of this provision is that when a person reasonably believes that he might be arrested for a non- bailable offence, he can then apply to the High Court or the Court of Session asking for anticipatory bail. Aperson cannot be refused an Anticipatory bail just because his/her name was mentioned in a FIR or a complaint of any sort but if the person from his conduct shows that if allowed to walk free then he might repeat the offence again, then an anticipatory bail cannot be granted to the person10.
8 48th Law Commission Report
9 AIR 1995 SC 119
10 Harji v State of Rajasthan (Cr.L.J) (HC of RAJ. : 1985)
The aim of the provision has been clearly shown in the case of Ashok Kumar v State of Rajasthan11 where a wife was killed and an allegation of dowry-death was filed against the father-in-law, the husband, the mother-in-law and the sister-in-law who is a student and of a very young age. The allegation was that all the four alleged accused have mentallytortured the girl to commit suicide.
The High Court of Rajasthan granted an anticipatory bail to the sister-in-law keeping in mind the age of the girl, the nature of the crime and the clear chance of merely maligning the girl and rejected the application for anticipatory bail of the other three accused. Here the Court clearly mentioned that unless and until the chances of the dishonoring and defaming the accused is clear in the allegation, no anticipatory bail can be granted under Section 438 of the Code.
The objective is to give an individual the respite from dishonor and shame and secure him from going to prison12. Hence the granting of bail is applicable only when there is an arrest. So, the idea of anticipatory bail comes after arrest only and once the person has got an anticipatory bail from the Court right after the arrest, then he/she will not have to stay in rigorous custody and then apply for a bail13.
The conditions which have been laid down in Section 437 are all applicable in Section 438 with respect to non-bailable offences. To fulfil the conditions of both the Sections, that is Section 437 and 438 of the Code, the accused must frame that the charges alleged against him are false and are aimed at dishonouring or defaming him14.
SECTION 438 OF CRPC:
On what grounds and conditions, a person will apply for anticipatory bail has been laid down in the first part of the Section. The second part of the Section deals with the jurisdiction of the Courts. The Section gives power to both the High Court and the Court of Sessions to grant anticipatory bail to a person. Sub-section (1) of Section 438 was amended in 2005 and the new sub-section (1) has been divided into sub-section (1), (1A) and (1B)15. On what conditions the bail is to be granted has been well elaborated in the sub-section (1) of the Act.
11 1980 Cr.L.R. (Raj.) 581
12 Natturasu v State (Mad.) (Cr.L.J.) (HC of MAD. :1998)
13 Balchand Jain v State of M.P. ((1976) 4 SCC 572)
14 Mathangonda v State of Karnataka (Cr.L.J) ( HC of Karnataka :1978)
15 CRPC Amendment Act 2005 (25 of 2005)
The Court must immediately give a notice to the Public Prosecutor and the Superintendent of the Police if the bail application has not been rejected by the court and had passed an interim order for the Bail. The person being given the bail should be present in the court during the granting of the anticipatory bail. Unless the person is in such a condition that he/she is unable to attend the proceeding, this ground will not be compromised with.
The Section says that the Court might also refuse the anticipatory bail after considering the nature and intensity of the crime, the previous criminal record of the accused and the possibility of the accused to escape from the country or abscond or misuse the liberty given to him/her in any way16. The nature of the crime is given a lot of importance. If the Court feels that the accused would not do anything to hamper the smooth functioning of the investigation and not create any hindrance to the investigation process then he/she can be granted bail17.
Also, if the behavior of the accused is such that it gives a benefit of doubt and there has been no signs of filing of false case or any intention of any third person to defame the accused and the investigation of the case is yet to be completed, then it is not reasonable to grant an anticipatory bail to the accused. It was held in a number of cases that the granting of anticipatory bail is a not to be misused by granting it in casual cases. It should be granted in exceptional cases. The conditions for granting an anticipatory bail is different from granting a bailin general and the exercise of the discretion for granting anticipatory bail should also be different.
CHARACTERISTICS OF ANTICIPATORY BAIL
The Supreme Court in 2003 held that Anticipatory Bail is not granted merely because of the individual’s right. In cases like murder and dowry-death where the punishment is capital punishment or imprisonment for life then the granting of anticipatory bail is not possible until and unless the situation clearly demands for the same18. Section 438 of the Code can be invoked only when the accused has an apprehension that there is an arrest that is to take place. But if the accused has already been arrested and has been put behind bars for committing a cognizable offence then he/she cannot ask for anticipatory bail because there is no question of protection of the accused from any dishonor or defamation19.
16 LilaraniRevani v R.D. Gandhi (Guj) (Cr.L.J) (1998)
17 K. Narayana Shivam v State of Andhra Pradesh (1980 Cr.L.J. 588 (A.P.)
18 Manoj Agarwal v State of Chhattisgarh (2003 Cr.L.J. 3519)
19 Narinderjit Singh Sahni v Union of India (AIR 2001 SC 3810)
The person who has an apprehension that he/she maybe arrested for a non-bailable offence can make an application which will necessarily indicate that the person is apprehending an arrest and therefore is asking the court of law for granting an anticipatory bail. The accused should sincerely feel threatened by an apprehension of arrest and this arrest should arise out of a non-bailable offence. The arrest should be imminent. This is a very important condition for granting of an anticipatory bail.
Another important condition that comes before the anticipatory bail is granted is that the threat of arrest should be based on an accusation which is non-bailable. The threat of arrest must be out of nothing but based on believable and reasonable facts. The applicant for the bail cannot say that there is a chance of a complaint of non-bailable offence being filed against him in the future or he/she feels that there has been an accusation against him/her.
If the case is that the accusation is to happen in the future then there cannot be an existing threat of arrest and the arrest is in no way imminent. This is a condition which comes before Section 438 can be revoked by any person. The applicant must specify the accusation that has been alleged against him/her in the bail application. Then there should be an appeal for release in case there is an arrest with respect to that particular accusation.
So, basically Section 438 is invoked only in case of a particular accusation and not against an uncertain accusation filed in general. Section 438 does not provide a blanket protection because in that case any person would approach the court of law and ask for a bail with respect to any allegation or case and this is problematic because then anybody could commit any offence and will have the protection against arrest. The filing of a FIR is not compulsory.
The Court is supposed to see that there is an accusation and the applicant has a chance to get arrested as a result of that accusation. Section 438 is not just applicable in case of an arrest made by the Police but this extends to any person who has the authority given by any statute to carry out an arrest20. Supreme Court in the case of Jaswantbhai M. Sheth v Anand v. Nagarsheth held that “the anticipatory bail order can be given at the discretion of the High Court. If the High Court believes that the applicant has a reasonable threat of arrest for committing a nonbailable offence”.
20 Suresh Vasudeva v State (1978 Cr.L.J. 677)
The Section 438 of the code’s main purpose is to guarantee an individual his/her right to liberty but it is very easy to mistreat this provision. The Section gives the courts the burden to make sure that this provision is not being used as a defense to commission of crime. The High Court and the Court of Sessions when approached with an application of anticipatory bail, must use their own discretion to either grant or not grant an anticipatory bail. Also, the court cannot send the request back to the Magistrate. If they do so, it will be against the aim and purpose of Section 43821.
ORDINARY BAIL AND ANTICIPATORY BAIL
An anticipatory bail is granted when a person is anticipating an arrest and it comes into effect as soon as arrest takes place.On the other hand, an ordinary bail is granted only after the arrest has taken place and the arrested person is let off from the jail and police custody22.
In case of an ordinary bail, the accused cannot escape the jail imprisonment or the custody of the police. But it is possible to avoid this and provide protection to an accused from jail custody. Ordinary bail comes to effect after the arrest or post-arrest and the anticipatory bail comes to effect before arrest or pre-arrest, that is, if the person is arrested consequent to the same accusation then he/she will be let go on anticipatory bail.Unlike an ordinary bail the anticipatory bail, under Section 438 of the code provides protection to the applicant and a certain amount of immunity from imprisonment. This is not true for an ordinary bail because it comes to effect after the person has been taken into the custody of the police23.
From the reading of the Section 439, it is clear to us that this Section can be invoked only after the person has been admitted to jail. That is to say that an ordinary bail is granted after arrest only. But the reading of Section 438 dealing with anticipatory bail, the person will not be admitted to jail as the bail comes to effect on the threat of the arrest itself24. So we can say that an anticipatory bail is granted at the very time of arrest25. In ordinary bail the release of the accused from the jail custody after Section 437 of the code is invoked is an essential part but in anticipatory bail the release from jail custody is not needed as the bail is effective as soon as arrest takes place.
21 Natturasu v State (1998 Cr.L.J. 1762 (Mad.)
22 Gurbaksh Singh Sibbia v State of Punjab(AIR 1980 2 SCC 565)
23 Pokar Ram v State of Rajasthan (AIR 1985 SC 969)
24 Nirmal Jeet Kaur v State of M.P. (AIR 2004 7 SCC 558)
25 D.K. Ganesh Babu v P.T. Manokaram (AIR 2007 SC 1450)
In case of an anticipatory bail, an application for granting of bail can be made when the accused can establish a reasonable threat of arrest. This threat of arrest can be enquired and examined if the application is filed before a charge-sheet has been made. This is because after a charge-sheet has been filed the appearance of the accused before the judiciary is guided by the court and the police by themselves do not take any step to arrest the accused or keep him/ her in custody.
In the case of PijushKanti Dey v State the court held that, “the idea of ordinary bail and anticipatory bail are not absolutely detached and different from each other”. By considering the language of Section 438 the Court held that, “the legislature had the intention to hold anticipatory bail along the same lines of an ordinary bail and not hold them as two different concepts”.
DISCRETION OF COURT IN GRANTING ANTICIPATORY BAIL
In the Gurbaksh Singh Sibbia v. State of Punjab, in the year 1980, the Supreme Court held that the discretion of granting anticipatory bail must be used more objectively and the higher courts have the power to correct this discretion if the need arise. A dual protection has been provided to this system so that there is no misuse if the discretion and the process. In the case of Directorate of Enforcement v. P.V. Prabhakar Rao, the Supreme Court held that “Anticipatory bail can only be granted by a High Court or a Court of Sessions only after they have exercised their power of judicial discretion properly”.
The court, be it for ordinary bail under Section 437 and Section 439 of the Code or an Anticipatory bail under Section 438, is required to exercise their discretionary power wisely and not arbitrarily. The granting of the bail should be based on reasonable grounds. There are no guidelines or processes given by the Code based on which the Court should exercise their discretionary power but as a result of that the courts cannot take arbitrary steps in granting bail.26 Section 438 of the Code is very wide and does not limit the power of the Courts in any way. So even when a person has a threat of arrest for being accused of a non-bailable offence based on which he/she makes an application for anticipatory bail, the Court has the powerand the discretion to grant or not grant Anticipatory bail.
26 Afsar Khan v State (1992 Cr.L.J. 1676)
The court needs to exercise this power in a judicial manner and keeping in mind the aim of the Section and also considering the loopholes of the system simultaneously27. The Courts are expected to take a lot of care and be extremely cautious in granting anticipatory bail as it can be easily misused.
High Court or the Court of Session cannot grant an anticipatory bail in a critical case where the police needs to take the accused in the custody and question him/her as a part of an investigation to get crucial information about the case but again, that does not disqualify the fact that the granting of anticipatory bail is a judicial discretion and it is only after the accused has made it evident to the court that there is a reasonable ground to exercise such discretion that the court can grant the bail and not otherwise. The Court has the burden to make sure that the applicant’s liberty and the investigation process of the Police are not clashing with one another and a proper balance is maintained. This Section relating to Anticipatory bail cannot be invoked mechanically. Aline in the Section quoting, “if it thinks fit” and the Sub-section (2) of the Section when read together, says that to grant anAnticipatory bail there must reasonable grounds that are evidently visible.
TYPES OF CASES WHERE ANTICIPATORY BAIL CAN BE GRANTED
The Supreme Court in Balchand Jain v. State of M.P. held that the features of Section 438 are of extraordinary nature and can be invoked only in extraordinary situations and cases. Further, the power by the Court to grant anticipatory bail should be granted in exceptional cases only. The Constitutional bench of the Supreme Court although accepted this holding based on the reasoning that anticipatory bail is not granted in ordinary circumstances under Section 437 and 439 of the Code where a court may accept or refuse to grant a bail to a person in the jail custody.
This is the ordinary way of bail application but this is not the case of an anticipatory bail and can be applied in non-ordinary cases only but the Supreme Court further held that even if not invoked in ordinary cases, it is not necessary for the Court to exercise their power to grant anticipatory bail in exceptional cases only. The granting of the bail is based on circumstances and not exceptionality and hence the courts must exercise the power with care and caution and also justify their reasoning for granting Anticipatory bail.
27 Jitendra Singh v State (1998 Cr.L.J. 1762 (Mad.))
The Supreme Court also held that if the powers of the Court in granting Anticipatory bail is subjected to limitations and guidelines, then the object and aim of the legislature with regards to this Section will fail.28 The Court further said that the previous case there was a question of security of the country and the concern of the case was related to interpreting Rule 184 of Defense and Internal Security of India Rule, 1971.
It was anyway a question whether Section 348 was applicable in a situation this critical and involved the security of the nation. Hence,we cannot say that the judgment of this case should be considered in all cases related to the invoking of Section 438 of the Code. In conclusion, the Constitutional Bench held that even though the feature of Section 438 is extraordinary yet but it is not necessary to invoke this Section only in exceptional cases.
In cases of Naresh Kumar Yadav v Ravindra Kumar, Adri Dharam Das v State of West Bengal and D.K. Ganesh v P.T. Manokaran the Supreme Court restated the holding of Balchand Jain case. They said the features of Section 438 of the Code is extraordinary and only if a person has been accused falsely or if the Court has reasonable ground to believe that the accused will not abscond can anticipatory bail be granted. The Adri Dharam Das case was the first among the others to restate the Balchand Jain case which was overruled by a 5- judge bench of the Supreme Court.
It is strange that a 2-judge bench of the Supreme Court in the Adri Dharam Das case held a contradicting judgment to the 5-judge bench of Supreme Court in the Gurbaksh Singh Sibbia case. Hence the holding of the Adri Dharam Das case becomes an incorrect law. The judgment becomes per incuriam to the existing law. All cases in contradiction to Gurbaksh Singh Sibbia case and upholding the Balchand Jain case have been considered to be per incuriam to the existing law or the incorrect law. Applicability of Section 438 of the Code will not be in generality but more in rarity29.
The invoking of Section 438 of the Code should be based on the facts that each case displays and it should not interrupt the process of investigation in any way and should rather focus on whether the accusation had a malicious intention of defamation and harassment.
28 Gurbaksh Singh Sibbia v State of Punjab (AIR 1980 2 SCC 565)
29 Narinderjit Singh Sahni v Union of India (AIR 2001 SC 3810)
It is also evidently important for the accused to clearly show the Court that the allegations are false and were filed to defame the accused or with other malign motives30. Further, the Court must make sure that the non-granting of theAnticipatory bail should not cause anyinjustice to the accused. The Court must inquire into the matter and take help of police if needed so that they can ensure whether or not to grant Anticipatory bail to the applicant.
CONDITIONS FOR GRANTING ANTICIPATORY BAIL
Section 438 of the Code was amended in the year 2005 and it came to effect in 2006. After the amendment, the Sub-section (1) of 438 listed the conditions for Anticipatory bail.
Firstly, the nature and intensity ofthe crime with which the accused has been charged. Secondly, if the accused has been earlier been arrested or was convicted for a cognizable offence by the Court of law. Thirdly, if the accused is likely to abscond if not arrested or create disturbance in the smooth investigation process. Fourthly, whether the accusation was made with mala fide intention and only to defame the applicant or ifthe accused is actually liable of commission of such alleged offence and the accusation was to achieve justice.
Some overriding considerations that the Court must keep in mind while granting Anticipatory bail has also been laid down in certain cases. Firstly, the relationship of the accused and the victim and the accused and the witness need to be considered. Secondly, whether the accused is likely to commit the same offence again or some other offence to harm the victim and the witnesses must be kept in mind. Thirdly, the history of the case and that of the investigation.31
WHO CAN APPLY FOR ANTICIPATORY BAIL
Any person who has a threat of arrest for a non-bailable offence and a warrant has been issued in his name based on the accusation, then he/she can apply for anticipatory bail. A person who is already on bailcannot apply for Anticipatory bail again for the same accusation.
TIME LIMIT AND INTERIM ORDER OF ANTICIPATORY BAIL
From the reading of Section 438 of the Code we understand that it should not be limited by time and once it is granted, it will continue to have effect till the trial ends and can only be cancelled on invoking Section 439.
30 Manoj Agarwal v State of Chhattisgarh (2003 Cr.L.J. 3519)
31 M. Krishnappa v State of Karnataka (1992 Cr.L.J. 2648(Kant.))
But the Supreme Court has held that it is important to have a limited time period for granting of anticipatory bail. And when the time has expired or if the time gets extended, then the Court that is granting the bail has to give the responsibility of dealing with anticipatory bail to a regular Court which will consider the evidences after investigating the matter or submission of the charge-sheet32.
High Court has been given the power to pass an interim bail in certain cases under Section 482 of the Code. An interim anticipatory bail can be granted for a short period of time in cases where the jurisdiction is in question and in cases where the anticipatory bail application is pending before a court of law, the Court can grant an interim anticipatory bail and then the applicant can file for an ordinary bail order before the Court of Sessions but only after getting permission fromthe High Court.
PUBLIC PROSECUTOR AND NOTICE OF ANTICIPATORY BAIL
In two cases the Court held that the notice of anticipatorybail before granting it to the applicant should be given to the Public Prosecutor. Although this has not been laid down in Section 438 of the Code. But later in a judgment the Supreme Court held that Anticipatory bail can be granted to an applicant even without a notice to the Public Prosecutor but in case of any dispute regarding the granting of anticipatory bail, the notice of the bail must be given to the Public Prosecutor and the Advocate of the Government and the grating of the bail should be examined again but if the Public Prosecutor has not been given the required scope to oppose the anticipatory bail application then even after granting the bail, it can be quashed33.
CANCELLING OF AN ANTICIPATORY BAIL
Although Section 439 of the Court does not talk about cancelling of a bail because it is assumed that the Court which has granted the anticipatory bail will recall it or even cancel it if the need arises for the same. The same is applicable for anticipatory bail also but being a special provision, it should in no way be misused. The power to cancel a bail is basically derived from the overriding power given to the High Court and it can only be exercised if the High Court believes it is essential in order to provide justice to the parties involved34.
32 Saluddin Abdul Samad Shaikh v State of Maharashtra. (1996 1 SCC 667 (668))
33 State of Maharashtra v Hanumantrao (AIR 1980 Cr.L.R. 526)
34 RatilalBhanji v Assistant Collector of Customs (AIR 1967 SC 1639)
THE IDEA OF ANTICIPATORY BAIL LACKS THE ELEMENTS OF BAIL PROCESS
The idea of anticipatory bail has over time become very popular in the Criminal Justice System and is considered as a way of protecting the liberty of an individual but not everyone has accepted this idea well. Introducing the anticipatory bail in the Code creates a lot of confusion in the entire system of granting bail and applying for bail.
The elements of bail are completely absent in the concept of anticipatory bail. This is because in a normal bail the custody of the person is either withthe State or the community. Also, the accused is initially kept in the custody of the police and then released after a bail bond has been executed bya third-party surety. The custody ofthe person who is applying forAnticipatory bail is a reason of confusion because he/she isneither in the State’s custody nor in any other custody. Also, the presence of the accused is not even required for granting of bail in case of anticipatory bail because even a threat of arrest can lead to granting of bail to the applicant35.
Anticipatory bail can lead to the misuse of the justice system to a large extent and that will affect the smooth functioning of the Justice System. The reason behind the same is that the Court is dealing with a situation based on presumption and in a pre-mature stage where the matter has not even taken a criminal nature. Also taking such a pre-matured matter to the court directly without giving the investigating agency any scope of working on it will end up defeating the authority of an investigating agency in the Criminal System.
This will lead to a lot of interference of the Court in the Police jurisdiction granted to them by statutes. This is basically intervention in the power and authorityof the police given by the law. Anticipatory bail is an anomaly of law when we see it in terms of the existing concept of bail. It is beneficial only for the rich and influential people but not so advantageous for others.36