Anticipatory bail –Section 438 of the Code of Criminal Procedure—

Section 438 of the Code reads as under:-

“438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely—

(i) the nature and gravity of the accusation; What is Anticipatory Bail

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and What is Anticipatory Bail

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.Xxx xxx xxx” What is Anticipatory Bail

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Section 438 makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character. It is to be exercised only in exceptional cases where it appears that:

1. the person may be falsely implicated or
2. where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.  What is Anticipatory Bail

In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 30, the scope of Section has been considered as under:-

1. Section 438 is a procedural provision.
2. It is concerned with the personal liberty of an individual who is entitled to plead innocence since he is not on the date of application for the exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail.
3. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence.
4. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.
5. The provisions cannot be invoked after the arrest of the accused.
6. A blanket order should not be generally passed.
7. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine.
8. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such a “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.  What is Anticipatory Bail

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In Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, the Court considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code.

Conclusion: From these materials and information, it is clear that where the person is not available for interrogation and investigation he use to be declared as an “absconder”. Normally, when the accused person is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. When a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of the warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

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