Can anticipatory bail once granted, be reviewed?


This article is written by Mansi Deore from the University of Mumbai Law Academy and curated by Shruti Chaudhary from Dr. Ram Manohar Lohiya National Law University, Lucknow.

Indian Criminal Law consists of a provision for Anticipatory Bail, prescribed under Section 438 of the Criminal Procedure Code (“CrPC”). Section 438 (1) lays down that ‘When any person has reason to believe that he may be arrested on an accusation of committing 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 deems fit, direct that in the situation of such arrest, he shall be released on bail.’ This section contains a new provision which gives the power to the superior courts to direct the release of person on bail prior to his arrest. This is commonly known as anticipatory bail.

There was no express provision for anticipatory bail in the old CrPC. The law commission subsequently recommended for the introduction of the provision of anticipatory bail in the present Code. This bail may be applied in the anticipation of arrest. If you believe that you have an apprehension for getting arrested of the crime which you did not commit, then you have a right to apply for this bail.

There are several conditions to be fulfilled for the application of anticipatory bail under the CrPC S.438 (1):

(1) a condition that the person claiming bail must be available for interrogation by a police officer as and when required;

(2) a condition that the person must not go out of India without the prior permission of the Court;

(3) any other condition as may be enforced under Section 437 (3),  as if the bail were granted under that section.

The Criminal Procedure Code, 1973 guarantees protection to persons anticipating or fearing arrest. The fundamental distinction between regular bail and anticipatory bail is that while a regular bail is applied for, by a person only after his arrest, anticipatory bail is applied for, by a person in anticipation of his arrest and to assure order from the court to avert the definite arrest. This is in furtherance of the idea that no one deserves to face any shame or disgrace in case he is implicated in false cases. But, there are some conditions that need to be considered for grant of Anticipatory Bail. Also, if the Applicant is a renowned businessman, having prosperous  standing  in the society, then his application for Anticipatory Bail may not be refused solely because he has been accused of having committed an economic offence of any character. Furthermore, in case of any violation under Foreign Exchange and Regulation Act, 1973 (“FERA”), if a person is able to establish that he is being needlessly harassed by the investigating company, then the Court may grant Anticipatory Bail in his favor.

While looking at the application for granting anticipatory bail, the court may after considering the factors listed below, either reject the application immediately or issue an interim order for the grant of anticipatory bail.

The factors to be taken into deliberation while granting or rejecting an application for such bail are:

  • The nature and gravity of the accusation;
  • The previous record of the applicant, including whether he has, in the past, been imprisoned for having committed any cognizable offence,
  • The possibility of the applicant fleeing from justice; and
  • Whether the accusation has been made with the object of injuring or humiliating the applicant by having his arrested.

Can anticipatory bail granted to a person be subjected to a review by the Court?

This was a question brought up before the Hon’ble Supreme Court of India after it furnished a notice in a challenge to the order of Gauhati High Court by which grant of anticipatory bail to the petitioner was called into dispute. (Ainul Hoque Molla v. the State of Assam). In this case, the petitioner was granted anticipatory bail by a Bench of the Gauhati High Court in August 2019, and her petition was done away with in November 2019.

Consequently, however, when the petitioner’s co-accused approached the High Court, a different Bench issued a notice to the petitioner as regards bail already granted to her. This Bench, governed by the Chief Justice propounded that the anticipatory bail was “erroneously grantednot and further, denying bail to the co-accused. This prompted the petitioner to move to the Supreme Court. The question posed before the Apex Court was whether the court has the power to review an order for bail that has already been granted, that too by a different judge.

The Hon’ble Supreme Court specifically elaborated on the difference between an ordinary order of bail and an order of anticipatory bail. It declared that whereas the former is granted after the arrest, and therefore, means release from police custody, the latter is granted in anticipation of arrest, and is therefore effective at the very moment of arrest. The obligation for granting of anticipatory bail surface chiefly because sometimes the known and influential people make an attempt to implicate their revivals in fallacious cases, to disgrace them or for other concocted purposes by getting them detained in jail for some days.

The anticipatory bail is the bail in which the accused does not stay a single day in the police custody (lockup in the police station) or in the judicial custody (jail) until his case gets decided, if he gets the order in his favour and it may be argued that the best legal relief for accused person is the anticipatory bail among all types of bails. This applies to the all criminal cases including dowry cases.









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