ABSTRACT:
Anticipatory Bail is comprised under section 438 of criminal procedural code and is explained as “Direction for grant of bail to person seizes arrest. When any person has grounds to believe that he may be arrested on an allegation 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 suitable, direct that in the event of such arrest, he shall be let go on bail.” the Court of Session and the High Court are allowed to entertain the Anticipatory bail applications. The grounds behind putting such provision in the code is to stop the innocent person from being blamed in false cases by powerful people or any other and so anticipatory bail has to be provided only in specific cases where it appears to the court that the person wanting anticipatory bail is being framed in the charge.
INTRODUCTION:
The Law Commission of India, in its 41st report, dated September 24, 1969, bring out attention to the want of introducing a provision in the Code, to give power to the High Courts and the Session Courts to allow anticipatory bail, for safeguarding an accused or any person, who is obstruct or having a belief that they may be arrested for any non-Bailable offence. The grounds for enactment of Section 438 in the Code were parliamentary acquirement of the important support of personal human rights in a free and democratic country.
Anticipatory bail is a conduct to release a person on bail, issued even before the person is arrested. An accused is allowed to be released from custody from officers of the law (the police) and into the custody of a person that is normally known to the accused as guarantor on Bail. An application for anticipatory Bail can be applied in cases of both Bailable and non-Bailable offences. While in the prior scenario, the Bail is allowed as a matter of right, the grant of Bail in the latter scenario is not a matter of right but a benefit & is at the wish of the discretionary power of the Court. Bailable Offence: Sec. 436 of the CrPC lays down provision for allowing Bail to a person blamed of any Bailable offence under the IPC. Non-Bailable Offence: Sec. 437 of the CrPC lays down the power of court to allow Bail to a person accused of committing a non-Bailable offence under the IPC.Anticipatory bail is justifiable till the conclusion of the trial or unless it is denied under section 439 of the code.
Factors & Conditions for Granting Anticipatory Bail
The anticipatory Bail is granted on the grounds of the following factors:
- Nature and significance of the charge.
- Applicant’s probability of getting away from justice.
- Prior cases against the applicant involving any prior convictions or cases of a cognizable offence.
Conditions laid by Court:
- Person shall not move away from the country and move or travel abroad without the prior permit of the Court.
- If a Court declines the anticipatory Bail of a person, he/she can be arrested by the police without a warrant.
- Person shall make himself/herself accessible for inquiry by a police officer whenever needed.
- Person shall not make any bribe, involvement, threat or promise to any person acquainted with the facts of the case so as to stop him/her from disclosing such facts to the Court or to any police officer.
Cancellation of Anticipatory Bail:
Sec. 437(5) & Sec. 439 of CrPC deal with the declination of anticipatory Bail. They advise that a Court which has the power to allow anticipatory Bail is also authorized to decline the Bail or look back on the order related to Bail upon proper deliberation of facts. A High Court or Court of Session may direct that any person who has been liberated on Bail by it- be arrested, and brought under custody after filing of an application by the complainant or the prosecution. However, a Court does not have the power to deny the Bail allowed by the police officer.
Not granting Anticipatory bail may create violation of fundamental rights of an individual under Article 21 of the Constitution of India
The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat was pleased to hold that "The provision of anticipatory bail incorporated in Section 438 of the Code is objectified under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal explanation of Section 438 of the Code in terms of Article 21 of the Constitution. The Code defines that an anticipatory bail is a pre-arrest legal procedure which directs that if the person in whose approval it is issued is thereafter arrested on the allegation in respect of which the direction is issued, he shall be freed on bail."
The apex court while observing the above honours the two provisions and related them together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand and that by passing the provision for allowing on Anticipatory Bail the legislature has endorsed the fundamental right of the citizen.
In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court observed that:-
“The distinction between a usual order of bail and an order of anticipatory bail is that whereas the former is allowed after arrest and therefore means freeing from the custody of the police, the latter is allowed in anticipation of arrest and is therefore important at the very moment of arrest. Police custody is an unavoidable attendant of arrest for non-Bailable offences. An order of anticipatory bail comprises, so to say, an insurance against police custody following upon arrest for offence or offences in accordance of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal procedure which directs that if the person in whose indulgence it is issued is thereafter arrested on the allegation in respect of which the direction is issued, he shall be let go on bail.”
CONCLUSION:
It is better that ten guilty persons get away than that one innocent hurts”.
The area and limit of the law on anticipatory bail has been elucidated by the judiciary time and again. Since the inclusiveness of Section 438 in the Code was anticipated as a cure for stopping arrest and custody in wrongful cases, it is in larger public interest that Section 438 is explained just under Article 21, to keep random and unaccommodating limitations on personal liberty at nurture. As most things have a grey side so do this provision of the code. The concept behind passing this law was to stop the innocent from getting arrested but with time the picture has replaced and know person accused of heinous offences are asked for repeatedly, which was not the intent of the assistance giving provision, which is a big apprehension.
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