THE CONCEPT OF ANTICIPATORY BAIL
Author: Ms.Lepakshi Thakur, Chanderprabhu Jain College of Higher Studies & Badal Khurana, GGSIPU
The fundamental right to liberty is one of the most significant rights as it is not only a fundamental right but also a natural right of an individual. However, every person has to respect the rights of others recognized by law like the inviolability of their body and their property. When a person is reasonably suspected to have committed an offence, the instrumentality of law is set in place to arrest him and to bring him to trial and punish him if found guilty. The act of arrest deprives a man of his liberty. On the other hand, bail is a measure that sets a person free on securing his/her promise to take a trial at a future date and to undergo punishment if found guilty. The idea of bail flows from the right to liberty. The fight behind the creation of this law was to keep blameless and innocent from getting caught yet with time, the photo has changed a lot and now people responsible for deplorable offenses and even ongoing guilty parties are applying for it over and over, which was not the aim then.
GENESIS OF ANTICIPATORY BAIL
Bail means a temporary release of an accused person awaiting trial, sometimes on a condition that a sum of money is deposited to guarantee their appearance in court. In other words, release or secure the release of a prisoner on payment of bail. It may be defined as Security.
The concept of anticipatory bail has been a by-product of judicial decisions on the interpretation of Sections 496, 497 and 498 of the Code of Criminal Procedure 1898. The grant of anticipatory bail has now been crystallized into a legal concept in Section 438 of the Code of Criminal Procedure 1973. The seeds of this concept can be traced in the recommendations of the Law Commission, which thought it could be an empirical addition to the protection of the rights of a person.
The Law Commission observed: “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of a steady increase.
A view was taken wherein a situation was observed that if an accused is not likely to abscond or misuse his liberty in some way, it would not be justified to require him to submit first to custody and then apply for bail. The central government in pursuance of the aforesaid recommendations of the Law Commission, introduced provisions in the Draft Bill; conferring express powers. Considering this provision the Law Commission observed. “The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report, vol. 1, pages 320-321, para 39.9). Further, the lawmakers were of the view that in order to ensure that the provision is not put to abuse at the instance of unethical petitioners, the final order should be made only after notice to the public prosecutor.
The aforesaid recommendations led to the development of Section 438 of the Code of Criminal Procedure. It reads as follows:
- When any person has reason to believe that he may be arrested on an 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
- 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 pension shall not leave India without the previous permission of the Court;
- Such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
- 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; and if a Magistrate taking cognizance of such offence decides that a warrant ‘should issue in the first instance against such person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1) of the Code of Criminal Procedure, 1973.
WHO CAN GET ANTICIPATORY BAIL?
Anticipatory bail is provided to safeguard a person who has deceitful accusation or charges made against him/her, most commonly due to professional or personal hostility, as it ensures the release of the deceitfully accused person even before he/she is arrested.
To get an anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court. If the court, based on a number of conditions and the nature of the case, sees worth in the petition the bail is granted to the person. Hence if and when the person is arrested, he/she will be straightaway released on the basis of the anticipatory bail.
Conditions taken into consideration by the court while granting anticipatory bail include, but are not limited to:
- The person will make him/herself available for examination by the police as and when required
- The individual shall not make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case.
- A declaration that the person shall not leave India without prior permission from the court.
HOW TO GET ANTICIPATORY BAIL?
Anticipatory bail can be acquired by a person who expects arrest. Hence, it is a direction to release a person on bail, even before the person is arrested. Anticipatory bail is applied under Section 438 of the Code of Criminal Procedure.
Reason for Obtaining Anticipatory Bail
Arrests are generally made after a criminal complaint to protect the presence of the accused at the time of trial and to ensure that, if guilty, he/she must be available for sentencing. However, if the presence of the accused can be judiciously guaranteed during the period of trial and sentencing, then it would be unjust and unfair to deny the accused of his/her liberty during the trial period. Hence, if the courts consider that it would be unjust and unfair to arrest a person during the trial, anticipatory bail is granted to the person.
Section 438 of the Criminal Procedure Code
- When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may approach to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- When the High Court or the Court of Session makes a direction under subsection (1), as it may think fit, may include:
- A condition that the person shall make himself available for examination by a police officer as and when required;
- A person shall not make any inducement, intimidation or promise to any person aware of the facts of the case so as to persuade against him from revealing such facts to the court or to any other police officer.
- A condition that the person shall not leave India without the prior permission of the Court;
- Or such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.
Anticipatory Bail Conditions
While granting anticipatory bail, the Court can impose the following conditions based on the facts of the particular case:
- Be available for examination by the police officer, as and when required;
- A person shall not make any inducement, intimidation or promise to any person aware with the facts of the case so as to persuade against him from revealing such facts to the court or to any other police officer;
- A person shall not leave India without the prior permission of the court.
DURATION OF ANTICIPATORY BAIL
The duration and expiry of the Anticipatory Bail are mainly chosen by the Court allowing the same. In most cases, an Anticipatory Bail once allowed must be held to be agent till the finish of the trial unless it is scratched off by the Court giving Anticipatory Bail. After the expiry of the period for which the Anticipatory Bail was without a doubt, the Court allowing Anticipatory Bail may expand the length for the same. In specific cases, the Anticipatory Bail requests can be of a restricted period and on expiry of that span or the expanded length, the Court allowing Anticipatory Bail may abandon it. The Trial Court is under an obligation to take fitting measures after the expiry of the term or the broadened length of Anticipatory Bail.
VALIDITY OF ANTICIPATORY BAIL
An application for Anticipatory Bail can be made to the High Court or the Court of Sessions, though normally it is to be presented first to the Sessions Court unless the case is made out straightway to the High court.
One can apply for anticipatory bail after filing of a cognizable case and before the arrest.
Concerning the period of validity of anticipatory bail, it depends upon the will of the court to grant the duration of the validity of anticipatory bail. Where the court does not lay down, it usually remains valid until your case is entirely disposed of.
Normally court grants anticipatory bail for a period of 30 days and after a period of 30 days, one needs to apply for regular bail. But if the person is arrested, he must produce his Anticipatory Bail and also file for regular bail during the stipulated time of the Anticipatory Bail. Once the stipulated time terminates, the person should either file for the extension of Anticipatory Bail or file it again. The anticipatory bail is granted till the filing of charge sheet but when the charge sheet is filed, you need to go for regular bail.
PRACTICE RELATING TO THE GRANT OF ANTICIPATORY BAIL
The court’s practice in granting anticipatory bail are subject to the following:
As per the common practice prevailing in the machinery of law, Supreme Court feels that the grant of bail is a rule whereas refusal is the exception.
Commonly, before the court grants anticipatory bail u/s 438 CrPC, the applicant has to show that there has been an accusation and he has ‘reason to believe’ that he may be arrested of a non-bailable offence by a competent person. The court, while passing an order to grant anticipatory bail, has to consider the following things such as
- nature of accusation
- character, behavior means and standing of the accused
- circumstances peculiar to the accused
- possibility of securing the presence of the accused at the trial
- reasonable apprehension of prosecution evidence being tampered with the larger interest of the public or the state
- nature of evidence-based on which conviction will entail
- likelihood of repeating similar offence
- the severity of likely punishment in case prosecution succeeds
However Public interest has been held to be a yardstick in refusing to grant bail. Several instances have been observed wherein cases dealing with dowry death, death of a large number of persons due to spurious liquor distilled by someone, murder cases when the investigation is still pending.
These practices though initiated in the first instance in individual cases, which are based on sound reasons, logics, and rationales, have been crystallized into binding precedents.
CAN ANTICIPATORY BAIL BE CANCELLED?
Cancellation of bail can be ordered only on stronger grounds, namely, a bail order having been procured on misrepresentation of facts, bench selection, on the inadequate improper exercise of discretion by the judges or on the proof of the accused interfering with investigation or trial.
Bail may be canceled on the following grounds:
(1) When the person on bail is found altering with the evidence either during the investigation or during the trial.
(2) When the person on bail commits a similar offence or any dreadful offence during the period of bail.
(3) When the person on bail has escaped and trial of the case gets postponed on that account.
(4) When it is alleged that the person on bail is horrifying the witness and committing acts of violence against the police.
(5) When the person on bail creates grave law and order problems in the society and he had become a threat to the peaceful living of the people.
(6) When it is found that the consequent events make out a non-bailable offence or a serious offence.
(7) When the High Court established that there was a wrong exercise of judicial discretion to grant the accused bail.
(8) When the circumstances were proved that the accused has distorted the liberty granted to him, it is sufficient ground to cancel bail.
(9) If the life of the accused person on bail is in danger.
The anticipatory bail can also be annulled before the regular bail is actually granted.
There is a thin line difference between a customary request of bail and a request of anticipatory bail is that while the previous is allowed after being captured and in this manner implies discharge from the care of the police, while the latter is conceded fully expecting capture and is along these lines compelling at the exact second of capture. After being captured, the blamed must look for his cure under Section 437 or Section 439 of the Code, whereas before the capture if one feels and fears to be arrested by the police under any accusation, one must look for the cure mentioned under Section 438 of the Code.
In the case of Satish Vasant Salvi v. State of Maharashtra &Anr., a woman had lodged a complaint against her husband on the charges of cruelty for dowry demands under Section 498a of the Indian Penal Code. The husband was arrested and had to undergo a humiliating test against his will to determine his potency. It was later ruled by the court that the arrest of the man and he undergoing the medical test against his will was illegal under Section 41 of the CrPC and that the same infringed upon his fundamental right to life and liberty under Article 21 of the Constitution of India. It was due to such scenarios, the provision of Anticipatory Bail was introduced. In the above case, if the husband would have had an apprehension regarding his arrest on the said charges, he could have successfully claimed Anticipatory Bail.
In the case of JaswantbhaiSheth v. AnandNagarsheth, in which the petitioner was seeking anticipatory bail on the presumption that he might be arrested even though he was not named in the FIR. The court decided that this is not a valid enough or reasonable ground to claim anticipatory bail.
In Ramesh Gandhi v. State of Jharkahand, where the petitioner Branch Manager of a Bank and other petitioners directors of a company in the conspiracy, were charged under Ss. 420, 120B and S.13 of the Prevention of Corruption Act, the petitioner Branch Manager of the Bank issued bank guarantee in excess of the financial limits and allowed credit facilities beyond his power and bank norms, it was a case of mere irregularity and no loss was caused to the bank, the petitioner was granted anticipatory bail.
Law Commission of India, Forty first Report, pars 39.9 (1969).
(2015) Cri.W.P. No. 725/14
(2000) 10 SCC 7
2004 CrLJ 1037 (1040,1041) (Jhr).