Anticipatory Bail – An Extraordinary Judicial Intervention?
On 14th March 2020, an order of the Supreme Court of Pakistan was widely reported with a claim that there was no room for pre-arrest bail in the law. In response to that, I have attempted to explain the law of anticipatory bail and have drawn a comparison between pre-arrest bail in Pakistan and India, keeping in view that Pakistan has not turned it into a statutory remedy while India has incorporated it into its criminal procedure.
Pre-arrest bail, or anticipatory bail, is a remedy which has its roots in the law of equity and in a way aims to ‘impede’ an ongoing or anticipatory process of criminal investigation. This extraordinary judicial protection is extended solely to rescue an ‘innocent’ from the dread and abuse of the legal process with a view to protect that person’s dignity. The said remedy cannot be granted in every other criminal case, only in cases where an accused is facing charges which have prima facie been structured upon evidence permitting custody of the accused. On the downside, prevention from arrest, where it is so required by law, is a measure with far-reaching consequences which may include the loss or disappearance of evidence and sometimes of the accused as well.
Bail basically means release from constraint and practically refers to release from police custody. The act of arrest directly affects the liberty and movement of a person arrested by law enforcing authorities, while an order of bail, generally speaking, returns that freedom to the accused on the condition that the accused will appear to stand trial. Assurance is obtained from the accused through personal recognizance surety bonds and other such modalities that despite being released on bail, the accused will present himself or herself at trial for the offence(s) which he or she has been charged with.
The distinction between ordinary bail and an order of pre-arrest/anticipatory bail is that the former grants relief when an arrest is made and releases an accused from the custody of the police, while the latter is granted in anticipation of arrest and becomes effective from the moment the arrest has been made or ought to be made. It should be noted that police custody is ultimately unavoidable for non-bailable offences.
The Criminal Procedure Code 1898 does not contemplate any such remedy as anticipatory bail. It was made part of Pakistan’s criminal jurisprudence by the Lahore High Court in Hidayat Ullah Khan v The Crown to provide judicial refuge to the innocent and the vulnerable from trumped up charges and rigors of the legal process. The High Court declared that it had power under section 498 of the Criminal Procedure Code to make an order to grant bail to a person who was suspected of an offence for which he or she may be arrested by a police officer or the court. The High Court exercised its jurisdiction to grant bail before arrest to a person residing within its territorial jurisdiction. It was subsequently also extended to those whose warrants of arrest had been issued by a court of a different province.
The right of pre-arrest bail, when it began to be routinely exercised in every other criminal case, was limited to only those cases which had been based on mala fide intent, ulterior motive or enmity, or where no offence had been shown to have been committed from a bare reading of the first information report (FIR).
Over time, the courts further developed the relief of interim pre-arrest bail and directed for it to be allowed when a notice for pre-arrest bail had been given, so that the petitioner would not be arrested in the meantime. Admitting the application for pre-arrest bail in a regular hearing would otherwise be a futile exercise.
It was initially made a rule that bail before arrest would not be possible unless the petitioner had been in custody or under some form of restraint and must have appeared before the court to surrender. Eventually, pre-arrest bail was also confirmed where the petitioner had been absent in certain circumstances such as owing to a medical condition. Even otherwise, a petition for pre-arrest bail cannot be declined straight away – the petitioner is to be given a reasonable opportunity to explain absence. Furthermore, the courts take into consideration any existing or imminent threat related to arrest. The Supreme Court has also clarified that issuing a warrant of arrest in the name of the petitioner is not necessary for granting bail before arrest.
For a comparative analysis with neighbouring jurisdictions, Pakistan has maintained pre-arrest bail or anticipatory bail as a purely equitable remedy and an extraordinary judicial intervention in the process of investigation, while India has made it a statutory remedy by including section 438 in its Criminal Procedure Code. Even then, the courts in India have declared it a remedy of extraordinary character which must be exercised sparingly and in exceptional cases only.
The Indian statute requires that when the High Court or Court of Sessions makes a direction for anticipatory bail, it may include any other condition besides the three conditions given by the statute itself, according to which a person shall make himself or herself available for interrogation; the accused shall not, directly or indirectly, compel any person acquainted with the facts of the case to not disclose such facts to the court; and he or she shall not leave the country without prior permission of the court. The Indian legislature appears to have granted wide discretion to the High Court and the Court of Sessions to grant anticipatory bail for two reasons. Firstly, because it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted. Secondly, because the intention was to allow the higher courts a somewhat free hand in granting relief related to anticipatory bail.
Despite the fact that Pakistan has still not codified anticipatory bail into a statutory provision, the jurisprudence surrounding it bears remarkable similarities with that of India. The manner and extent of use, rather than the principles relied upon and the conditions applied, are almost identical across the border. Taking everything into account, it would be right to refer to anticipatory bail in any modern criminal justice system as a crucial underpinning used to shield an individual’s personal liberty in a free and democratic country.
 Article 14 of Constitution of Pakistan guarantees the right to dignity to every individual
 2020 S C M R 249
 Cr. Petition No.169 of 2020 [Ghulam Farooq Channa v Special Judge ACE (Central-I) Karachi & another]
 PLD 1949 Lahore 21 [Hidayat Ullah Khan v The Crown]
 1973 P.Cr.LJ 661 [MUHAMMAD AMIN v THE STATE]
 PLJ 1996 S.C. 797 [Muhammad Azam v The State]
 PLJ 1996 Cr.C. (Lah.) 810 [Syed Muhammad Nadeem Abbas v The State]
 PLD 1953 FC 1709 [Khushi Muhammad v Crown]
 NLR 1988 Cr. 49[Zahid Khalil v State]
 NLR 1982 Cr. 207 [Noor Ahmed etc v The State]
 PLD 1966 SC 489 [Sadiq Ali v State]
 Section 438 of Criminal Procedure Code of India, 1973
 AIR 1980 SC 1632 [GURBAKSH SINGH SIBBIA ETC. v STATE OF PUNJAB]
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