Anticipatory Bail and Regular Bail Distinguished

📖 Adri Dharan Das v. State of West Bengal, (2005) 4 SCC 303

Facts: A person against whom an accusation had been made moved for anticipatory bail and, while that application was pending, sought protection from arrest on terms which in substance amounted to regular bail without any surrender. The Court examined the difference between the two jurisdictions and the conditions on which each is exercised.

Held: The Supreme Court held that the power to grant anticipatory bail is an extraordinary power to be exercised in exceptional cases and sparingly, and that it is not to be granted as a matter of routine. It is not a shield against a lawful investigation: the section is intended to protect a person against a false or motivated accusation made with the object of injuring or humiliating him by having him arrested, and not to give general immunity to a person genuinely suspected of an offence. The Court held that regular bail under the provision corresponding to section 483 can be sought only by a person in custody, that the word custody is a precondition of the jurisdiction, and that the two provisions operate in different fields. It emphasised that a person seeking anticipatory bail cannot at the same time claim the benefit of regular bail, and that where the Court declines anticipatory bail the applicant’s course is to surrender and apply for regular bail, not to seek indefinite protection.

Ratio: Anticipatory bail is an extraordinary power exercised sparingly, not a shield against a lawful investigation. Regular bail can be sought only by a person in custody, custody being a precondition of that jurisdiction, and the two operate in different fields.

⚠ What counts as custody

Custody is not confined to formal arrest by a police officer. A person who surrenders before the Court and submits to its directions is in custody for the purpose of an application for regular bail, and the Court may entertain it.

A person merely present in court on some other business, or who has not submitted to its jurisdiction in the matter, is not in custody.

Nor is a person protected by an order of anticipatory bail. The whole object of that order is that he shall not be taken into custody.

The practical consequence: where a person apprehends arrest he applies under section 482; where he has been arrested he applies under section 480 or 483; and where he wishes to avoid arrest but has no order, he may surrender and apply for regular bail — which is often the swifter course.

Section 482(3), BNSS 2023

If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail.

📖 Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152

Facts: An application for anticipatory bail was refused by the courts below on the footing that the power should be exercised only in exceptional circumstances and that the applicant must make out a special case. The Supreme Court reviewed the principles governing the jurisdiction.

Held: The Supreme Court restated the settled position. The power to grant anticipatory bail is conferred in wide terms, and the Court should not read into the section limitations the legislature has not imposed. It is not confined to exceptional or rare cases, and an applicant need not make out a special case beyond a reason to believe, founded on objective facts, that he may be arrested on an accusation of a non-bailable offence. The Court set out the matters to be weighed — the nature and gravity of the accusation, the antecedents of the applicant, the possibility of his fleeing from justice, whether the accusation appears to have been made to injure or humiliate him, the reasonable apprehension of tampering with witnesses, and the larger interest of the public and the State. It held that the grant of anticipatory bail is not an interference with the investigation, since the investigating agency retains its powers and may seek the applicant’s presence for interrogation under the conditions the section permits; and that the relief is a device to secure individual liberty, not a favour.

Ratio: The power is conferred in wide terms and is not confined to exceptional cases; no special case need be made out beyond a reason to believe founded on objective facts. The grant is not an interference with the investigation, the agency retaining its powers under the statutory conditions.

The position stated shortly

1. Regular bail presupposes custody; anticipatory bail presupposes its absence. The two are mutually exclusive at any given moment.

2. Anticipatory bail is a direction operating on a future contingency; regular bail is an order of release operating at once.

3. Only the High Court and the Court of Session may grant anticipatory bail. Regular bail may be granted by a Magistrate as well.

4. The precondition for anticipatory bail is a reason to believe, founded on objective facts, that he may be arrested on an accusation of a non-bailable offence. An FIR is not a condition precedent.

5. Custody is not confined to formal arrest. A person who surrenders before the Court and submits to its directions is in custody for the purpose of a regular bail application.

6. An application for regular bail by a person not in custody is premature; one for anticipatory bail by a person in custody is misconceived.

7. Anticipatory bail is an extraordinary power exercised sparingly, and is not a shield against a lawful investigation: Adri Dharan Das.

8. But the power is in wide terms, is not confined to exceptional cases, and no special case need be made out beyond the statutory reason to believe: Bhadresh Bipinbhai Sheth.

9. The grant is not an interference with the investigation: the agency retains its powers, and section 482(2) permits a condition that the applicant make himself available for interrogation.

10. Section 482(3) is the hinge. On arrest, the direction converts into an actual release at the hands of the police officer, if the person is prepared to give bail.