ANTICIPATORY BAIL DISHA GUPTA BASICS OF LAW Sat, Aug 03, 2019, at ,11:52 AM Anticipatory bail refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. The ‘anticipatory’ labeling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted after arrest and therefore 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. In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable offense as under section 438 of the Criminal Procedure Code. A non-bailable offense is one for which the police if not empowered to release the arrested person on bail (except under certain special circumstance not dealt with here). NEED FOR ANTICIPATORY BAIL- The provision for anticipatory bail was brought into the picture so as to keep a check on the gross misuse of powers of arrest. The number of cases involving false accusations and complaints with a malice was on the rise which is why the provision of Anticipatory Bail was introduced, which does not stop the authorities from investigating the matter, however, an anticipatory bail does prevent the person from being arrested upon the receipt of the complaint he had anticipated of. He can, of course, be arrested later upon proper investigation and based on such investigation if there are reasonable grounds to believe that he is guilty. In the case of SATISH VASANT SALVI VS STATE OF MAHARASHTRA AND ANR, a woman had lodged a complaint against her husband on the charges of cruelty for dowry demands under Section 498a of the Indian Penal Code. The husband was arrested and had to undergo a humiliating test against his will to determine his potency. It was later ruled by the court that the arrest of the man and he undergoing the medical test against his will was illegal under Section 41 of the CrPC and that the same infringed upon his fundamental right to life and liberty under Article 21 of the Constitution of India. FEATURE OF ANTICIPATORY BAIL- The idea behind anticipatory bail was to prevent persons from unreasonable arrest. So, the onus of reasonability also applies to the one seeking anticipatory bail. In other words, the applicant must have a logical “reason to believe” that he might be arrested. In the case of ADRI DHARAN DAS VS STATE OF WEST BENGAL, the court ruled that the reason to believe must be based on reasonable grounds and not on any whims and fancies of the applicant. This same idea was referred to in an earlier Supreme Court case in the case JASWANT BHAI SHETH VS ANAND NAGARSHETH, in which the petitioner was seeking anticipatory bail on the presumption that he might be arrested even though he was not named in the FIR. The court decided that this is not a valid enough or reasonable ground to claim anticipatory bail. WHEN ANTICIPATORY BAIL CANNOT BE GRANTED- There are certain circumstances where applications for anticipatory bail are normally refused. These include: For offenses/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971. The provisions of section 438 are normally refused to those accused of particularly heinous offenses like murder and rape. CASE LAWS- In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2199 (Cal) : 1982 (2) Cal HN 317- It was held that the provision for the anticipatory bail in Section 438 of the Code applies even when there is no “First Information Report” and no case for commission of a non-bailable offense has been registered against a person. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, although no “First Information Report” was filed against him, he may appear before the Court and apply for an order for his release on bail in the event of his arrest. Suresh Vasudeva v. State, 1978 Cri LJ 677 at pp. 681-82 (Del) - It was observed that S. 438(1) of Cr.P.C. applies only to non-bailable offenses. The section itself especially prescribes that any order passed under this section would be effective only after the person concerned has been arrested. It does not require that the offense must have been registered. All that this section contemplates is that the person applying has a reasonable belief that he may be arrested on accusation of having committed a non-bailable offense. It will depend on the facts of each case whether the person applying could have the necessary “reason to believe”. This “reason to believe” is not dependent upon the registration of the case only. K. Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933 at p. 1935 (AP)- It has been held that the filing of an F.I.R. and registration of a crime by the police is not a condition precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under S. 438 of Cr.P.C.