Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested .It is only issued by the Sessions court and High Court.
Anticipatory bail is meant to be a safeguard against arrest for a person who has false accusation or charges made against him, as it ensures the release of the falsely accused person even before he is arrested.
Meaning Of Anticipatory Bail
Definition
The Collins (Dictionary) defines anticipatory as ‘feeling or action is one that you have or do because you are expecting something to happen soon’.
It describes the feeling you get when you know what’s coming. It can also describe something that happens because something else is going to happen later.
Cambridge (Dictionary) a feeling of excitement about something that is going to happen in the near future.
Whereas, as per the Macmillan dictionary, Anticipatory is “relating to the feelings that you get when you are expecting something to happen.”
Having a good notion about the term anticipatory and what bail is one can easy fathom about the concept of Anticipatory bail, as the term in holistic view devoid any specific designation for definition and only the relevant provision can elucidate the meaning as rest is all interpretation by wise men.
Introduction
The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until his case is disposed of. Depending on the gravity of the allegations, a person may be able to avoid arrest altogether. However, there are cases in which arrest is made and the accused is set free as per the provisions of the bail as given under the Criminal Procedure Code. In cases of Criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused person. It is literally applied for in anticipation of arrest.
The right to liberty is the natural right and also the fundamental right of an individual. However, a 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 machinery of law is set in motion 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. Bail sets him free on securing his promise to take trial at a future date and to undergo punishment if found guilty.
Types Of Bail under CrPC, In India
There are most commonly 3 types of bail under CrPc, in India which a person can apply depending upon the stage of the criminal matter. These types of types of bail are :
- What is Regular Bail Type under CrPC, in India: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the Code of Criminal Procedure of 1973.
- What is Interim Bail Type under CrPC, in India: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
- What is Anticipatory Bail Type under CrPC, in India: A person, who discerns that he may be arrested by the police for a non-bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the Code of Criminal Procedure of 1973. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.
Distinction Between Ordinary And Anticipatory Bail
The Hon’ble Supreme Court in ‘Gurbaksh Singh Sibbia v. State of Punjab’ held and elucidated the concept.
The distinction between an ordinary order of bail and an order to understand what is anticipatory bail, is that whereas 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. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Ambit and scope of anticipatory bail
For Anticipatory Bail, Section 438 empowers a High Court and a Court of Session to grant anticipatory bail. It is not as if bail is presently granted by the Court in anticipation of arrest. But it means that in the event of arrest, a person shall be enlarged on bail.
This power is extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or Otherwise misuse his liberty while on bail” that such power can properly be exercised.
This power being rather unusual in nature is entrusted only to the higher echelons of judicial service, namely a Court of Session and a High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court.
What is Anticipatory Bail In Indian Law
The Code of Criminal Procedure 1973 does not define the words anticipatory bail. This misnomer i.e. ‘anticipatory bail’ becomes operative only on an arrest. The type of anticipatory bail provides that a person who believes that he may get arrested for a non-bailable offence then that person may apply to the either High court or the session’s court in order to get a direction for grant of anticipatory bail section 438 of Code of Criminal Procedure 1973.
Anticipatory Bail in Delhi
Anticipatory bail is dealt under section 438 of The Code of Criminal Procedure 1973. This appeal involves issues of great public importance pertaining to the importance of individuals. There are reasonable grounds for holding that person accused of an offense is not likely to abscond, or otherwise misuse his liberty while on bail. As held in “Avinash Vs. State”
State of NCT of Delhi relied upon by learned counsel for the petitioner, in a matrimonial dispute while granting anticipatory bail, video order dated for interrogation by the police officers, as and when required. This ensures that the accused does not misuse liberty by directly to any person acquainted.
Condition for Anticipatory Bail
Where any person has 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 that Court may, after taking into consideration, inter-alia, the following factors.
- The nature and gravity of the accusation.
- 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.
- The possibility of the applicant to flee from justice.
- 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
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
The High Court and the Court of Session to whom the application for anticipatory bail is made can impose such conditions as the case may warrant. The conditions mentioned in Section 438(2) are merely illustrative and not exhaustive. The Court while granting anticipatory bail must remember that the investigation has not yet been completed and it is the duty of the court to ensure that the investigation should not be hampered or interfered with in any manner.
The Court, however, cannot impose a condition other than warranted by law. Thus, no direction can be issued to the effect that the applicant if arrested should be released on bail provided he produces the alleged stolen property before the investigating officer. Such order can be set aside by the High Court in revision or by exercising inherent powers.
The Court has a power to put some conditions and restrictions as per the type of bail. 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
There are many types of bails. Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a person. No person can be deprived of his personal liberty and can be detained unnecessarily. But 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 time and again through a catena of 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 and all kinds of accusation, likely or unlikely.
Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail.
Though there is no specific provision in Section 439 of Code of Criminal Procedure 1973 regarding cancellation of bail, it is implicit that the Court which grants anticipatory bail is entitled upon appropriate consideration to cancel or recall that order. Thus, an order of anticipatory bail granted by Court of Session can be recalled or cancelled by that Court or by the High Court. But an order passed by the High Court cannot be cancelled by the Court of Session.
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