Section 438 of the Criminal Procedure Code lays down a provision for a person to seek ‘Anticipatory Bail’. An individual can request to get bail in anticipation when he expects of being named as accused or is accused of committing a non-bailable offence.
It is safeguard for a person who has false accusation or charges made
against him/her, most commonly due to enmity, as it ensures the release of the
falsely accused person even before he/she is arrested. One must approach the
Sessions Court or the High Court under section 438 of the Criminal Procedure
Code and also giving proper reasons for it. If the honourable court, sees merit
in the petition the bail is granted based on the conditions and the nature of
the case. Hence if and when the person is arrested, he/she will be immediately
released on the basis of the anticipatory bail.
On the first day of hearing of the Anticipatory bail application (ABA), if the
honourable court is convinced , the honourable court grants Interim bail till
the final order is given on ABA.
In today’s discussion I will be only focusing on the aspect of ABA with respect to a accusation of a person under section 420 of the India Penal Code.
Section 420 of IPC is defined as “Section 420 of The Indian Penal Court talks about the offence which is committed by the person who cheats another person and thereby induces the deceived to deliver any property. This provision provides punishment for the same.“
Offence committed under Section 420 of IPC is a non- bailable offence therefore
ABA can be granted. This was held in the case of VAMAN NARAIN GHIYA V. STATE
OF RAJASTHAN where the hon’ble supreme court has held- “balance to
be maintained between the personal liberty of the accused and the investigation
right of the police an accused is not detained in custody with the object of
punishing him on the assumption of his guilt thus can opt anticipatory bail.
Offence under 420 IPC are non bailable offence due to which it is possible to
apply for anticipatory bail under section 438 CrPC“. Anticipatory bail
application has been brought into the picture to safe guard the individual
liberty as guaranteed under Article 21 of the constitution.
the honourable Court applies its mind to the facts and circumstances of the case. The Court is required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail “if it thinks fit”.
The aforesaid expression has been explained by this Court in Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565 as follows:
“Circumstances may broadly justify the grant of bail in when a person is
charged under section 420 of IPC , though of course, the court is free to
refuse anticipatory bail in any case if there is material before it justifying
such refusal.
The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty”.
Some more observations made by this Court in the case of Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565 :
” since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is 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. An over- generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi vs Union of India , that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”
The recommendations
were considered by this Court in a Constitution Bench decision in the case of Gurbaksh
Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565. Upon
consideration of the entire issue this Court laid down certain salutary
principles to be followed in exercise of the power under Section 438 Cr.P.C. by
the Sessions Court and the High Court. It is clearly held that the
anticipatory bail can be granted at any time so long as the applicant has not
been arrested. When the application is made to the High Court or Court of
Sessions it must apply its own mind on the question and decide when the case is
made out for granting such relief. There is also no reason to deny anticipatory
bail merely because the allegation in this case pertains to cheating or forgery
of a valuable security. The merits of these issues shall have to be assessed at
the time of the trial of the accused persons and denial of anticipatory bail
only on the ground that the challan has been presented would not satisfy the
requirements of Sections 437 and 438 Cr.P.C.
Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:
1)The person will make
him/herself available for interrogation by the police as and when required by
them
2)The individual shall not directly or indirectly make any threat,
promise or offer any bribe to any person who is connected to the case or knows
facts about the case, so as to keep them quiet or to get them to change their
report of facts to the court or the police
3)An assurance that the person shall not leave India without prior permission from the court.
Therefore, anticipatory bail application is granted to a person who accepts the above conditions. riority
Shyam Upadhyay 