Anticipatory Bail
Yesterday I was watching a web series where an advocate asked his client to apply for an anticipatory bail because there are chances that he may get arrested on the charge of committing murder.
TABLE OF CONTENTS:
- INTRODUCTION
- SECTION 438
- PROCEDURE
- THE COURT HAS AUTHORITY TO IMPOSE FOLLOWING CONDITIONS
- TERMINATION OF ANTICIPATORY BAIL
- CONCLUSION
INTRODUCTION:
The term “anticipatory bail” is not defined in the Code of Criminal Procedure 1973, and it was not even included in the previous 1898 code. The term was first introduced in the 41st Law Commission Report, 1969, when it was thought that such a provision was needed to protect an accused who is apprehending or has cause to suspect that he will be arrested for a non-bailable offence.
Before delving into the laws of Anticipatory Bail/pre-arrest bail, it is critical that we understand the dynamics of the provision of bail as we know it today.
Bail’s origins can be traced back to the medieval period, when King John of England implemented the first known drafted constitution, which was referred as “Magna Carta“. The origins of bail can be traced back from Magna Carta clause 39, which states, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgement of his equals or by the law of the land.” A reading of this clause reveals that a person shall not be restricted or confined unless and until a final judgement in conformity with the laws of the land is issued. A close reading and decoding of this clause reveals a strong resemblance to the provisions of the Cr.P.C. regarding bail.
SECTION 438 OF CrPc:
The term anticipatory bail is not used in the CrPc; rather, it allows for a direction to give bail to someone who is about to be arrested. Section 438 of the Criminal Procedure Code of 1973 states that if a person has reason to believe that he may be arrested on the charge of committing a non-bailable cognizable offense, he may apply to the Court of Session or the High Court for bail in the event of such arrest.
The Court may grant or deny bail based on criteria such as the accused’s antecedent (including imprisonment for a cognizable offence), the nature and severity of the offence, the risk of escaping from justice, and the likelihood of allegations being made to damage or humiliate the applicant.
The Court may also grant the applicant interim bail and serve a notice of not less than seven days, along with a copy of the order, on the Public Prosecutor and the Superintendent of Police, in order to provide the Public Prosecutor a reasonable opportunity to present his case when the application is called on for final hearing by the Court. If, on an application submitted to Court by the Public Prosecutor in this respect, the Court determines that the attendance of the applicant is necessary in the interest of justice at the final hearing of the application, he must appear in Court.
In the case of granting bail to the applicant, the High Court or the Court of Session may impose conditions based on the facts and circumstances of the case, such as; the person shall make himself available to the police officer as and when required for the purposes of investigation, and he shall not make any threat, inducement, or provocation to any person acquainted with the facts of the case, directly or indirectly. Furthermore, as stipulated in Section 437 (3) of the CrPc, the Court may impose any condition.
In the case that a person who has been granted anticipatory bail by the court is arrested, he will be released as soon as he is ready to provide bail to the police officer. A bailable warrant will be issued if a Magistrate agrees to issue an arrest warrant in such a case.
PROCEDURE:
A person may apply to the High Court or the Sessions Court for anticipatory bail. As soon as a person suspects that they may be arrested under Sections 406, 434, or 498A, they should counsel a skilled lawyer about obtaining anticipatory bail. The Lawyer will then submit a “Vakalatnama” at the proper district court, along with the necessary anticipatory bail plea. The court will then schedule a hearing for the petition. The individual must try to accompany the Lawyer to court so that the court can hear their side of the story. Following the 2005 amendment, the court is now required to hear the Public Prosecutor. When the District and Sessions Court denies Anticipatory Bail, the person must and shall file an appeal in the High Court, and the High Court normally granted Anticipatory Bail. After bail is granted, there are a few formalities that must be completed before the person is released on bond.
THE COURT HAS THE AUTHORITY TO IMPOSE FOLLOWING CONDITIONS:
- A condition that the person make oneself available for questioning by a police officer when needed;
- A condition that the individual not, directly or indirectly, provide any enticement, threat, or promise to any person familiar with the facts of the case in order to discourage him from reporting such facts to the Court or any police officer.
- A condition requiring the person, not leave India without the Court’s prior consent;
- Any other restriction imposed under Subsection (3) of Section 437, as though bail were granted under that section.
TERMINATION OF ANTICIPATORY BAIL:
Though there is no express provision in Section 439 governing bail termination, it is implied that the Court that provides anticipatory bail has the authority to cancel or recall that order upon reasonable reasons. Anticipatory Bail is a specific privilege offered to those who are about to be arrested, and it should not be exploited in any way. Even in the absence of an express provision in the Code for bail cancellation, the power of cancellation stems from the High Court’s overriding inherent powers and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.
CASE LAWS:
In the case of Badresh Bipinbai Seth v. State of Gujarat it was held that “The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.”
Although Section 438 makes no provision for giving a notice to the Public Prosecutor (a lawyer who appears on behalf of the government) and holding a hearing before the court, the Supreme Court said in Gurbaksh Singh Sibbia v. State of Punjab, “a notice should be issued to the Public Prosecutor or the Government advocate before passing final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the court may pass such order, issuing notice to the Public Prosecutor by making it returnable and may pass final order after hearing both the sides.”
CONCLUSION
Anticipatory Bail was included to the Code to protect a person’s personal liberty from being violated. No one’s personal liberty may be violated or detained unduly. However, the Courts should exercise extreme caution when granting it in order to prevent abuse of this particular privilege. The Supreme Court of India has emphasised this fact numerous times in a series of decisions. Anticipatory bail is a tool for securing an individual’s liberty; it is neither a licence to commit crimes or a shield against any and all types of allegation, likely or unlikely.