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July 18, 2004

Answers to queries about anticipatory bail

Justice Mohammad Rabbani

What is anticipatory bail?
When a person "is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a court" he may be released on bail by that Court either in terms of section 496 of the Code of Criminal Procedure if he is accused of a bailable offence or in terms of section 497 of the said Code if he is accused of a non-bailable offence. But section 498 of the said Code provides that the High Court Division or the Court of Session may "direct that any person be admitted to bail" and this is known as anticipatory bail.

The earliest reported case of anticipatory bail is a case decided by a Division Bench of the Calcutta High Court on 17.8.1906. A man named Jhasheeram was found murdered on a footpath in the city of Calcutta. Four persons were arrested on suspension by the police and when their case was pending before a presidency magistrate three other persons were also suspected by the police and warrants were issued for their arrest.

Those three persons applied for anticipatory bail before a Division Bench of the Calcutta High Court under section 498. Learned judges directed that the three petitioners should be released on bail on condition that the magistrate might cancel the bail if on production of evidence he found reasonable ground that they or any of them were guilty of the offence. [Ref: 10 CWN 1093=4 Cr LJ 221].

Whether petitioner's appearance is necessary?
The answer was given by the then Supreme Court of Pakistan in 1966. Police started inquiries against a person named Sadiq Ali for certain criminal offences. Sadiq applied for bail before arrest to the local session judge the sessions judge granted ad interim bail and issued notice to the state. On the date of hearing the Public Prosecutor submitted that some ocular evidence was on record against Sadiq. The sessions judge finally rejected the application for anticipatory bail and ordered that Sadiq be given to police custody. For that purpose the sessions judge directed his court peon to arrest Sadiq, but he ran away.

Then the sessions judge lodged complain in the court of magistrate 1st class against Sadiq for committing offence under section 224 of the Penal Code for escaping from the custody in which he was lawfully detained in the court of sessions judge.

The matter ultimately came up before the Full Bench of the Supreme Court who quashed the proceedings holding that the cancellation of the bail by the sessions judge did not entail the consequence that Sadiq had to be given to police custody. The simple meaning of this decision is that to get bail under section 496 or 497 a person has to appear in the court either involuntarily or voluntarily and in both the circumstances he comes under the legal custody of that court which is the same court where he has to appear and submit bail bond in case he is allowed anticipatory bail under section 498. It must be understood that bail is one form of legal custody. Thus a person seeking anticipatory bail is not required to appear for placing himself under lawful custody of the High Court Division or Court of Sessions and consequent to the refusal of his prayer, he will be left to be dealt with by the police. [Ref: 18 DLR (SC) 393.]

Justice Mohammad Rabbani is a Retired Judge of Appellate Division.