28 January 2021
“Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty and is given him by the author of nature, because necessary for his own sustenance.” – Thomas Jefferson
Personal liberty is a natural, vital and essential right of an individual, recognised as a fundamental right under Article 21 of the Constitution of India. This entitlement is a part of the inalienable basic structure of the Constitution of India. When an individual is suspected to have committed an offence (punishable under the law for the time being in force), the machinery of law is mandated to arrest them, bring them to trial and punish them if found guilty. Arrest deprives an individual of his personal liberty, and the act of securing bail usually sets him free. The concept of bail is inextricably linked to the right to personal liberty. The entitlement to secure bail flows from the provisions of Sections 436, 437 and 439 of the Code of Criminal Procedure, 1973 (“Code”), along with the facet of anticipatory bail, introduced thereto by the Law Commission’s 41st report.
The concept of anticipatory bail was unknown to the old code of criminal procedure of 1898. The Law Commission of India, in its 41st report, dated September 24, 1969, drew attention to the necessity of introducing a provision in the Code, to enable the High Courts and the Session Courts to grant anticipatory bail, for protecting an accused or any person, who is apprehending or having a belief that they may be arrested for any non-bailable offence.
The Law Commission noted that the necessity for granting anticipatory bail arose because, at times, influential individuals tried to implicate their rivals in false cases for the purpose of disgracing them or for other purposes, by detaining them in jail for a couple of days. It was also observed that, with the accentuation of political rivalry, the aforesaid tendency showed signs of a steady increase. The Law Commission also suggested that it may not be practical to exhaustively enumerate conditions under which anticipatory bail maybe granted, as the same may have been construed as prejudging the entire case. Hence, this was left to the discretion of the courts, without any fetters on such discretion in the statutory provision.
Accordingly, taking into consideration the Law Commission’s report (and the clear and present need of the hour), the Parliament, while enacting the Code, introduced a provision for anticipatory bail under Section 438, under the heading “Direction for grant of bail to person apprehending arrest”.
Judicial Precedent – the Winding Course of the Law of Anticipatory Bail
The law on anticipatory bail has developed in a non-linear course, through a plethora of judgments passed by the Supreme Court. The following cases are considered to be landmark breakthroughs in the law on anticipatory bail.
The very first landmark judgment on anticipatory bail was passed by a five-judge bench of the Supreme Court on April 9, 1980, in Gurbaksh Singh Sibbia v. State of Punjab, which laid down the prevailing law of the land on this issue, along with some guiding principles on the concept of anticipatory bail. The Supreme Court, while considering personal liberty as a fundamental right under Article 21, declared that any provision of law, which deals with personal liberty of an individual cannot be unduly whittled down by reading restrictions into it, especially the ones, which find no mention in the statute itself. This due process drew inspiration from the judgment passed in Maneka Gandhi v. Union of India, which upheld the primacy of an individual’s personal liberty and mandated all laws having an interface with personal liberty to be “just, fair and reasonable”.
Additionally, the Supreme Court held that courts should lean against imposition of unnecessary restrictions on the scope of Section 438 of the Code when no such restrictions have been imposed by the legislature. In the light of this, the Supreme Court held that the period for which anticipatory bail is granted should not be limited. The Supreme Court noted that one of the most important aspects of anticipatory bail is that no time-based limitation was ever statutorily envisaged, as the same would change the very basis of the concept from being a provision ensuring personal liberty, to one granting contingent freedom. Further, the Supreme Court also stated that courts are entitled to impose restrictive conditions as they deem fit, but due consideration should be given to the seriousness and nature of the proposed charges. Furthermore, the Supreme Court laid down guiding principles inter alia being that (i) the applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence (ii) the High Court or the Sessions Court as the case may be must apply its own mind to the question and decide whether a case is made out for granting such a relief (iii) the filing of a First Information Report (“FIR”) is not a condition precedent to the exercise of power under Section 438 (iv) anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested (v) the provisions of Section 438 cannot be invoked after the arrest of the accused (vi) a blanket order of anticipatory bail should not generally be passed and (vii) the normal rule should not be to limit the operation of the order in relation to a period of time.
Thereafter, in Salauddin Abdulsamad Shaikh v. State of Maharashtra, a three-judge bench of the Supreme Court adopted a contrary view, and held that anticipatory bail should be time bound, since an application for unfettered bail can be considered only upon completion of the investigation. The rationale given by the Supreme Court was that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. The Supreme Court further stated that, it is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, and the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. The judgment in Salauddin (Supra) may not be said to have laid down the correct law, on two counts namely, (i) that it failed to take into consideration the law laid down by the Constitution bench in Sibbia (Supra) and may therefore be considered to be per-incurium, and (ii) the judgment may not have aptly considered the scope of Section 438 of the Code, the scrutiny permissible at the time of deciding an application thereunder and the material considerations at that stage. In this regard, it is well settled that the considerations before the court at the time of granting anticipatory bail are almost analogous to those at the time of grant of regular bail. Therefore, there may not be any basis for a difference in approach while adjudicating an application for anticipatory bail, as opposed to one for regular bail. Additionally, the Supreme Court in Salauddin (Supra) did not consider that even in a regular bail application, the court may not be informed of the nature of evidence against the applicant.
Notwithstanding the fact that the ratio held in Salauddin (Supra) appears to be prima facie erroneous, the principles laid down therein were nonetheless followed in several judgments, all of which were in the teeth of Sibbia (Supra).
Subsequently, the law on the subject corrected course and the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra analysed Section 438 in the context of personal liberty, firmly, at the core of its approach. While observing that Section 438 was incorporated to ensure and protect personal liberty, the Court noted that the decision of Sibbia (Supra) was not brought to the notice of the bench in Salauddin (Supra), thus rendering the same and the decisions, which followed its line of reasoning, per-incuriam. Thus, the Supreme Court held that in the absence of any time constraint within Section 438, the life of an order granting anticipatory bail ought not to be curtailed.
Soon after, a five-judge bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)overruled the aforesaid contrary judgments, including the judgment passed in Siddharam Satligapa Mhetre (Supra) and held that anticipatory bail should not invariably be limited to a fixed period and that the same should inure in favour of the accused without any restriction on time. It was further held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial and if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open to do so. The Supreme Court leaned towards the findings and judgment laid down by the Constitution Bench in Sibbia (Supra) and reaffirmed the same. Additionally, the Supreme Court held that the application for anticipatory bail should be based on concrete facts, relatable to one or other specific offence, along with the reason for apprehending arrest. It was iterated that courts should consider the nature of the offence, role of the person, likelihood of him influencing the course of the investigation or tampering with evidence or likelihood of fleeing and accordingly courts may impose restrictive conditions. Furthermore, while concluding, the Supreme Court laid down certain guiding principles and held that the police or the investigating agency were entitled to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any terms of the conditions laid down and were also entitled to investigate the charges against the person who seeks the same.
The scope and ambit of the law on anticipatory bail has been elucidated by the judiciary time and again. Since the inclusion of Section 438 in the Code was envisaged as an antidote for preventing arrest and detention in false cases, it is in larger public interest that Section 438 is interpreted fairly under Article 21, to keep arbitrary and unreasonable limitations on personal liberty at bay. The clear ratio of Sibbia (Supra) and Sushila Aggarwal (Supra) appear to be in line with the object and purpose of Section 438 of the Code. The Constitution Bench in Sushila Aggarwal (Supra) has considered and given due weightage to personal liberty, which at the very heart of the law, is central to the concept of anticipatory bail. In the immortal words of Mahatma Gandhi, “To deprive a man of his natural liberty and to deny him the ordinary amenities of his life is worse than starving the body; it is starvation of the soul, the dweller in the body.”
For further information, please contact:
Aditya Mehta, Partner, Cyril Amarchand Mangaldas
21 Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to the procedure established by law.
 Section 438 – Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an 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; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:
a condition that the person shall make himself available for interrogation by a police officer as and when required,
a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
a condition that the person shall not leave India without prior permission of the court,
such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).”
 (1980) 2 SCC 565
 Paragraph 26 of Note 3(Supra)
 AIR 1978 SC 597
 (1996) 1 SCC 667
 Judgment dated 07.12.2006 passed by the Hon’ble Bombay High Court in Kamlesh v. State of Maharashtra (Cri. Appln. Nos. 3347 to 3349 and 3458 of 2006)
 K.L. Verma v. State and Anr (1998 (9) SCC 348); Sunita Devi v. State of Bihar and Anr (2005 (1) SCC 608); Adri Dharan Das v. State of West Bengal (2005 (4) SCC 303); Nirmal Jeet Kaur v. State of M.P. & Anr (2004 (7) SCC 558); HDFC Bank Limited v. J.J. Mannan(2010 (1) SCC 679); Satpal Singh v. the State of Punjab(2018 SCC OnLine SC 415); and Naresh Kumar Yadav v Ravindra Kumar(2008 (1) SCC 632)
 AIR 2011 SC 312
 2018 SCC Online SC 531
 Paragraphs 1(7) and 1(9) of Note 10 (supra)