Anticipatory Bail 135 ANTICIPATORY BAIL Shyam D. Nandan* I Introduction A PLAIN READING of section 438 of the Code of Criminal Procedure,1973 makes it apparent that it does not refer to a phrase called anticipatory bail. The phrase used in the said provision is bail to person apprehending arrest. The term anticipatory bail was used for the first time in the 41 st Report of the Law Commission of India, which, in fact recommended the inclusion of this section in the Code of 1973. Through judicial pronouncements over the years, the term anticipatory bail has become part of judicial parlance. Section 438 of the Code is an important provision aiming to preserve the precious fundamental right 1 of personal liberty. An order of anticipatory bail granted by the court under section 438 is considered to be an insurance against police custody following upon arrest for offence with regard to which the order is issued. 2 In other words, it is a pre-arrest legal process, aiming to relieve a person from being unnecessarily deprived of personal liberty. The Code of Criminal Procedure of 1898, had no provision for anticipatory bail, which was subsequently introduced by amendment in order to safeguard liberty from onslaught of an unjust arrest and likely ordeal of custodial experience 3 and to prevent undue harassment of the accused persons by the pre-trial arrest and detention. 4 The Law Commission of India in its 41 st Report had recommended for the provision of anticipatory bail, in the backdrop of various conflicting decisions of the high court on the matter whether courts had the inherent power to pass an order of bail, in anticipation of arrest (pre-arrest bail). 5 The reasons for introducing a provision for granting pre-arrest bail were voiced thus by the Law Commission: 6 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 * Advocate on Record, Supreme Court of India. 1 Shobhan Singh Khanka v. State of Jharkhand 2012 (4) SCALE 78. 2 Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 3 Mohd. Rafioddin Siddiqui v. State of Maharashtra, 2012 SCC OnLine Bom 380 . 4 AIR 2003 SC 4662. Also see, Ravindra Saxena v. State of Rajasthan, AIR 2010 SC1225. 5 State of Gujarat v. Govindlal Shah, AIR 1966 Guj 146; Mangilal v. State, 1952 Cr LJ 1425. 6 Law Commission of India on 41st Report on the Code of Criminal Procedure ,1898-Vol 1, 315-322 (1969) at 321. CHAPTER-FIVE