anticipatory bail

This article on the laws related to anticipatory bail in India by Pragati Singh from Faculty of Law, Lucknow University.

INTRODUCTION TO THE CONCEPT OF ANTICIPATORY BAIL

“Bail is money or some form of property that is deposited or pledged to a court, in order to secure the release from jail of a suspect who has been arrested, with the understanding that the suspect will return for their trial and required court appearances. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear”. Under the Cr.PC there is two kind of bails: Regular bail (Section 436) and  Anticipatory bail (section 438). Chapter 33 of the Cr.PC is based on the principle of “BAIL AND NO JAIL”.

In case of “Balchand Jain V. State of M.P.,” the court has defined anticipatory bail as ‘bail in anticipation of arrest’. Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. An explanation of Anticipatory bail is given by the Supreme Court in the case of “Gurbaksh Singh Sibbia v The State of Punjab” that under sub-section (1) of Section 438 of the Code, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere ‘fear’ is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.

A person can apply for anticipatory bail even after the FIR is filed, but not if the person has been arrested already.

OBJECT OF GRANTING ANTICIPATORY BAIL

Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Indian Constitution and it is considered as one of the precious right. Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973.

The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. The very basic purpose of insertion of this provision was that no person should be confined in any way until and unless held guilty.

 

PROVISION RELATING TO ANTICIPATORY BAIL UNDER CRIMINAL CODE OF PROCEDURE

Where any person has a reason to believe that he may be arrested on accusation of having  committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into consideration the following factors, namely-

  1. the nature and gravity of the accusation.
  2. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
  3. the possibility of the applicant to flee from justice.
  4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Where the High court or court of session grants interim bail to the applicant then the court forthwith a show cause notice attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

 

 

  • WHO IS ELIGIBLE TO OBTAIN ANTICIPATORY BAIL

 

When any person has a reason to believe that there is a chance  to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

  • CONDITIONS FOR OBTAINING THE ANTICIPATORY BAIL

The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including:

  • a condition that the person shall make himself available for interrogation by the police officer as and when required;
  • a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
  • a condition that the person shall not leave India without the previous permission of the court.

Supreme Court while dealing the case of Siddharam Satlingappa Mhetre, held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.

CANCELLATION

An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody on an application moved by the complainant or the prosecution.

PROVISION OF ANTICIPATORY BAIL IN UTTAR PRADESH

There is no provision for anticipatory bail in the state of U.P. It was in 1975 that General Emergency was imposed in India by the Indira Gandhi government. The ongoing Jai Prakash Narayan movement was the root cause of this. Uttar Pradesh witnessed most unrest and anti-Emergency and anti-Congress protests during this period. In 1976, article 438 of the Criminal Procedure Code (Cr.pc) was withdrawn through an act. The provision of anticipatory bail was omitted in Uttar Pradesh by inserting Section 9 in Uttar Pradesh Amendment Act, 1976 which came into effect from Nov 28, 1975.

Thousands of people have suffered because of the non-availability of anticipatory bail in the state of U.P. In the case of registration of a criminal case with non-bailable sections of the IPC, a person has only one option to save himself from arrest, move the High Court at once. A resident of UP has to rush to Allahabad High Court or the Lucknow Bench of the court to get a stay on arrest under section 482 of the Code of Criminal Procedure.

 

DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY BAIL

In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.

 

ORDINARY BAIL ANTICIPATORY  BAIL
Provisions relating to bail are contained in Sections 436 and 437, Cr.P.C. Provisions relating to anticipatory bail is contained in Section 438 of the Cr.P.C.
The provisions relating to bail were contained in the old Code of Criminal Procedure, 1898 There was no provision for grant of anticipatory bail in the old Cr.P.C, 1898
Bail may be granted to the accused by any Judicial Magistrate or Court Anticipatory bail may be granted only by the High Court or Sessions Court.
Bail is a post-arrest legal procesS, so it is granted only after arrest of the person Whereas anticipatory bail is a pre-arrest legal process in anticipation of possibility of arrest of a person
Bail is ordinarily granted as a matter of right in case of bailable offence and it may also be granted in non-bailable offences under Section 437, Cr.P.C, 1973 Power to grant anticipatory bail is of an extraordinary character which is to be used by the Court in a restricted or infrequent manner.

 

PROCEDURE FOR GETTING AN ANTICIPATORY BAIL

For getting the anticipatory bail the person may approach the High Court or the Sessions Court. As soon as the person apprehends that they may be arrested under section 406, 434 or under section 498A they should consult a good lawyer for grant of an anticipatory bail. The Lawyer will then file a “wakalatnama” in the appropriate district court with the required anticipatory bail petition. Then there will be a hearing scheduled by the court for the petition.
Many a times it happens that the District and Sessions Court denies the Anticipatory Bail, then the person must and shall appeal in the High Court and the High Court generally grants the Anticipatory Bail. After the bail is granted there are few formalities that have to be followed before the person is finally out on Bail. The Court has the power to put some conditions and restrictions. These are:-
  • A condition that the person shall make himself available for interrogation by a police officer as and when required,
  • A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer,
  • A condition that the person shall not leave India without the previous permission of the Court,
  • Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

CONCLUSION

Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a person. Now it has become a tool which is exercised by the people to escape from their criminal liability. That is why utmost care should be exercised by the Courts while granting it so as to prevent the abuse of this special privilege. The Hon’ble Supreme Court of India has emphasized on this point through certain judgments

Anticipatory bail is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any kinds of accusation. So it should be granted only to the people who actually deserve it.

 

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