Anticipatory Bail

Anticipatory bail, a term not found in any Indian Legislation, refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. As observed in Balchand Jain vs. the State of M.P.,1976 anticipatory bail means bail expectation of arrest. The expression anticipatory bail is incorrect in as much as it is not as if bail is presently granted by the Court in anticipation of arrest. This section was included in the statute after the reference by the Law Commission in its 41st report. The provision was novel and developed by the Indian Judiciary.

Over the years, the judiciary has used it to provide protection to persons, who have been accused of committing non-bailable offenses, being released on bail in event of their being arrested. There is no universal formula as to when this protection is to be granted or rejected, it is left with the discretion of the higher judiciary of the state to grant or reject the application. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offenses. An order of anticipatory bail constitutes an insurance against police custody following upon arrest for offense or offenses in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued; he shall be released on bail. Section 46(1) of the CrPC which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest “shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”. A direction Under Section 438 is intended to confer conditional immunity from this ‘touch’ or confinement.[1]

Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment, and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social