Why was the provision of anticipatory bail introduced? – Historical perspective

11. The Code of Criminal Procedure, 1898 did not contain any

specific provision of anticipatory bail. Under the old Code, there

was a sharp difference of opinion amongst the various High

Courts on the question as to whether the courts had an inherent

power to pass an order of bail in anticipation of arrest, the

preponderance of view being that it did not have such power.

12. The Law Commission of India, in its 41st Report dated

September 24, 1969 pointed out the necessity of introducing a

provision in the Code of Criminal Procedure enabling the High

Court and the Court of Sessions to grant “anticipatory bail”. It

observed in para 39.9 of its report (Volume I) and the same is set

out as under:

“The suggestion for directing the release of a person on

bail prior to his arrest (commonly known as

“anticipatory bail”) was carefully considered by us.

Though there is a conflict of judicial opinion about the

power of a court to grant anticipatory bail, the

majority view is that there is no such power under the

existing provisions of the Code. The necessity for

granting anticipatory bail arises mainly because

sometimes influential persons try to implicate their

rivals in false cases for the purpose of disgracing them

or for other purposes by getting them detained in jail

for some days. In recent times, with the accentuation

of political rivalry, this tendency is showing signs of

steady increase. Apart from false cases, where there

are reasonable grounds for holding that a person

accused of an offence is not likely to abscond, or

otherwise misuse his liberty while on bail, there seems

no justification to require him first to submit to

custody, remain in prison for some days and then

apply for bail.”

The Law commission recommended acceptance of the

suggestion.

13. The Law Commission in para 31 of its 48th Report (July,

1972) made the following comments on the aforesaid clause:

“The Bill introduces a provision for the grant of

anticipatory bail. This is substantially in accordance

with the recommendation made by the previous

Commission. We agree that this would be a useful

addition, though we must add that it is in very

exceptional cases that such a power should be

exercised.

We are further of the view that in order to ensure

that the provision is not put to abuse at the instance

of unscrupulous petitioners, the final order should be

made only after notice to the Public Prosecutor. The

initial order should only be an interim one. Further,

the relevant section should make it clear that the

direction can be issued only for reasons to be

recorded, and if the court is satisfied that such a

direction is necessary in the interests of justice.

It will also be convenient to provide that notice of

the interim order as well as of the final orders will be

given to the Superintendent of Police forthwith.”

14. Police custody is an inevitable concomitant of arrest for

non-bailable offences. The concept of anticipatory bail is that a

person who apprehends his arrest in a non-bailable case can

apply for grant of bail to the Court of Sessions or to the High

Court before the arrest.

(Cited from the Judgement Delivered by Hon’ble Supreme Court of India in the case of “Siddharam Satlingappa Mhetre vs State of Maharashtra and Others”)

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Haider Ajaz