The petitioner is said to have been accused of offences punishable under Sections 494, 506 and 498A of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity), at the instance of his divorced wife, in case bearing Crime no.667/2014, said to have been registered by the Hebbagodi Police, Bangalore Rural District.

2. The petitioner is said to have approached the Court of the III Additional District and Sessions Judge, Bangalore Rural District, seeking anticipatory bail, as he was likely to be taken into custody in relation to the above case. The Court below is said to have granted anticipatory bail, while imposing certain conditions. One of the conditions was that the petitioner, in the event of his arrest and release by the Investigating Officer, shall surrender before the jurisdictional Court of the Magistrate and obtain regular bail. The petitioner is aggrieved by the said condition and has preferred this petition.

3. It is seen that this is not the first instance of the lower courts imposing such a condition in spite of the apex court having laid down clear guidelines as to the proper course of action for the courts in the matter of grant of anticipatory bail and the duration for which it is to be granted. It is hence necessary to restate the law as laid down in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011)1 SCC 694.

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.

The Law Commission of India, in its 41st Report (1969) and the 48th Report (1972), pointed out the necessity of introducing a provision in the Code of Criminal Procedure (Hereinafter referred to as the ‘CrPC’ for brevity) and recommended the same, to enable the High Courts and the Courts of Session to grant “anticipatory bail”.

It was evident from the Statement of Objects and Reasons for introducing Section 438 in the CrPC (1973) was to evolve a device by which an alleged accused was not compelled to face ignominy and disgrace at the instance of influential seeking to implicate their rivals in false cases. It was to recognise the importance of personal liberty and freedom in a free and democratic country. It pressed into service the age old principle that an individual is presumed to be innocent till he is found guilty by the court.

The Constitution Bench of the apex court in Gurubaksh Singh Sibbia v. State of Punjab, (1980)2 SCC 565, had comprehensively dealt with the scope and ambit of the concept of anticipatory bail and the following principles were laid down in that regard :

“ (a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

(b) Filing of FIR is not a condition precedent to exercise of power under Section 438.

(c) Order under Section 438 would not affect the right of police to conduct investigation.

(d) Conditions mentioned in Section 437 cannot be read into Section 438.

(e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.

(f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.”

The following decisions, which were all rendered after the decision in Sibbia, were found to have been decided without reference to the ratio of the said Constitution Bench judgment and hence were