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Anticipatory Bail

Bail is cash or some type of property that is kept or vowed to a court, to get the delivery from prison of a speculate who has been captured, with the agreement that the presume will return for their preliminary and required court appearances. On the off chance that the suspect does not get back to court, the bail is relinquished, and the suspect may potentially be raised on charges of the wrongdoing of inability to show up. Under the Cr.PC there is two sort of bails: Regular bail (Section 436) and Anticipatory bail (section 438). Section 33 of the Cr.PC depends on the guideline of BAIL AND NO JAIL.

In case of Balchand Jain V. State of M.P1., 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 2 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 Mhetre3, held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.

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.

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 Vakalatnama 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.

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.

  1. 1977 AIR 366, 1977 SCR (2) 52
  2. 1980 AIR 1632, 1980 SCR (3) 383
  3. (2011) 1 SCC 694

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