Personal liberty is a natural, vital 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, 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 to disgrace 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”,

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 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.

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. 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 the 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. 

References:

1.https://www.livelaw.in/columns/criminal-procedure-code-1973-anticipatory-bail-article-21-constitution-of-india-175401

2.https://www.legalserviceindia.com/legal/article-41-anticipatory-bail.html

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