ANTICIPATORY BAIL
1. 1. Which provision of the code of Criminal
procedure deals with anticipatory bail? Which Court is empowered to grant
anticipatory bail?
Answer:
The CrP.C. 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 under section 438 of Code of Criminal
Procedure. The labelling of any order as ‘anticipatory’ should not be
misunderstood. This brings us to state the fundamental difference between an order
for an anticipatory bail and one for bail- is that anticipatory bail is granted
before arrest and consequently it becomes operative from the very moment when
arrest has taken place, however the normal bail can be granted only after
arrest.
The provisions for anticipatory bail provisions in
India can only be invoked if a person is apprehending arrest for a non-bailable
offence (as under s. 438 of the Criminal Procedure Code).
Analysis of the provision
Scrutiny of the aforementioned provision provides
for a remedy for a situation. According to this section where a person is not
yet arrested by the police but he apprehends his arrest on an accusation of
having committed a non-bailable offence, he can either move to High Court or
the Court of Session with that same apprehension and can request the court to
grant him an order which would entitle him to be released on bail in case he be
arrested. There is no provision regarding time limitation on the orders passed
under the anticipatory bail.
Factors to be considered while granting anticipatory
bail
The following factors have to be considered by the
court while granting an anticipatory bail:
The accusations gravity and its nature
The antecedents of the applicant are also crucial
matter. Facts such as whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence or not etc. are
relevant.
The applicant’s possibility of fleeing from justice
There can be possibility that accusation has been
made with the object of injuring or humiliating the applicant by having him so
arrested; in this situation either rejection the application forthwith or
issuing an interim order for the grant of anticipatory bail can be done.
Anticipatory Bail for Bailable and Non-Bailable
Offence
The application for anticipatory bail can be filed
in cases of both, bailable as well as non- bailable offences usually depending
upon the kind of offence in accordance with the relevant provision of the
CrP.C.
It has been stated in Section
436 that
in situations when any person, other than a person accused of a non-bailable
offence has been arrested or detained without warrant by an officer in charge
of a police station, or is brought before a court, and is prepared at any time
while in the custody of such officer or at any stage of the proceeding before
such Court to give bail, such a person needs to be released on bail.
Procedure to Apply for Anticipatory Bail
The Court of Session and the High court are to be
approached in order to grant anticipatory bail. If a person is under the
apprehension that a complaint is filed against him for any of the underlying
offences –
1. Criminal breach of trust (Section 406 IPC),
2. Mischief by destroying or moving, etc., a
landmark fixed by a public authority (Section 434 IPC).
Husband or relative of husband of a woman subjecting
her to cruelty (Section 498A IPC),
4. Any other non-bailable offence.
In the above cases, a person who is going to be
tried for the above offences needs to consult a criminal lawyer who will help
him in getting anticipatory bail. It is then the lawyer’s responsibility to
file a vakalatnama and an application for anticipatory bail. Subsequently,
after the petition is filed, the hearing is scheduled.
Procedure of Anticipatory Bail When FIR is
Filed
In a situation where an FIR has been filed, a notice
of arrest will be sent by an investigating officer. As soon as the notice of
arrest is served on the person, he shall file an application for anticipatory
bail with the help of criminal lawyer. The lawyer is then required to follow
the above procedure.
Procedure of Anticipatory Bail When FIR is Not
Filed
In this case, the Public Prosecutor is required to
talk to the concerned police officer. Since there is no filing of FIR it will
be presumed by the public prosecutor and the court that are no available
grounds for filing anticipatory bail. In the practical working the following
steps will follow:
1)The lawyer making an oral prayer for seven days
pre-arrest notice in case the police formulates an intention to arrest the
accused’s family.
2) In all likelihood, the judge will grant the plea.
3) An order will be passed accordingly. This is
generally called the ‘notice bail’.
4) If the bail application is rejected in the
Sessions Court, one could apply to the High Court. 5) If the High Court also
rejects the bail, one can apply to the Supreme Court.
Cancellation of Anticipatory Bail
Under CrP.C, S.439 deals with cancellation of
anticipatory bail. Though there is a specific provision in the code for the
cancellation, it is hence an implied matter that a court which has the power to
grant an anticipatory bail is also empowered to cancel bail or recall the order
related to bail upon appropriate consideration of facts.
It is expected that the powers which come with
anticipatory bail should not be abused in any manner as it is a special
privilege given to a person who is under reasonable apprehension of his
arrest.
This inherit power to cancel anticipatory bail can
be invoked only when court opines that this is a crucial step to meet the ends
of justice.
In the case of, K. Gajendra Baidu Vs State of
A.P. it was held by the court that the necessity for granting anticipatory
bail arises mainly because sometimes influential persons try to implicate their
rivals in false cases for certain purpose There are reasonable grounds for
holding that a person accused of an offense is not likely to abscond or
otherwise misuse his liberty while on bail.
Position of Anticipatory Bail in various states:
Position in Karnataka:
The case of Shri H D Kumaraswamy vs. State of
Karnataka. In this case, after hearing both sides, the Court opined
granting interim anticipatory bail and also directing the respondent, police to
release the petitioner along with surety as enumerated in the conditions of the
interim anticipatory bail order granted by the Court.
Position in Maharashtra:
In the case of Siddharam Satlingappa Mhetre Vs
state of Maharashtra. Mr. Bhushan contended that the appellant has been
implicated in a false case and apart from that he has already joined the
investigation and he is not likely to abscond, or in any case misuse the
liberty while on bail, therefore in the court’s opinion there was no justified
reason to decline anticipatory bail to the appellant.
Position in Uttar Pradesh:
Anticipatory bail has been introduced
back in Uttar Pradesh after an estimate of
almost 33 years. The provision related to pre-arrest bail was scrapped in 1976
during the Emergency-Period. Now the accused can get advance bail in the state in cases
of non-bailable offence.
Controversy around anticipatory bail
Time limitation is the arena which raises
controversies in the provisions related to anticipatory bail. The courts have
been trying the interpret the essence of this section and it is felt by them
that the sole reason for existence of anticipatory bail is for providing the
accused person some time to enable him to apply to the regular court for grant
of regular bail and therefore, an order granting anticipatory bail will operate
only till the time the disposition of the regular bail of the said accused
person has taken place.
A constitution bench of Supreme Court in Shri
Gurbaksh Singh Sibbia & Ors v. State of Punjab also referred as
Sibbia’s case, dealt with this issue at length and put the controversy to rest
by explaining the provision categorically and it stated that an order of anticipatory
bail is not limited in time and that it will subsist till the end of trial.
2) Who may be released on Bail?
The following persons may be directed to be released
on bail:
i. Any person under the age of 16.
ii. Any person above the age of 60.
iii. Any woman can be released on bail.
iv. Any sick of infirm person.
v. In cases where further inquiry is to take place.
vi. When rule of consistency needs to be followed.
vii. In cases of cross case.
3) Is travelling abroad an option open after getting
an anticipatory bail ?
At the time of granting the anticipatory bail the
court imposes certain terms and conditions and often contains restriction to
travel abroad. At the time of granting the court might seize your
passport as well. This is a measure taken by the court to avoid you from
absconding. However, in special cases or under exceptional circumstances the
court might grant you to go abroad, provided the court is satisfied with your
reasons.
GRANT OF ANTICIPATORY BAIL
In India, the Criminal Procedure Code 1973 provides protection to persons anticipating or fearing arrest. The essential difference between regular bail and anticipatory bail is that while a regular bail is applied for by a person/ accused only after his arrest, anticipatory bail ("Anticipatory Bail") is applied for by a person in anticipation of his arrest and to secure orders from court to prevent the actual arrest. Also, no one deserves to face disgrace in case he is implicated in false cases.
EMPOWERMENT OF COURTS
The High Courts and Court of Sessions ("Courts") in India are empowered to make an Order granting anticipatory bail that in the event of arrest; a person shall be forthwith released on bail without having to undergo the rigor of jail. Generally, the applicant has to first approach the Court of Sessions for moving an application for Anticipatory Bail unless special circumstances exist for filing the same in the High Court. If an application is rejected by the Court of Sessions, a fresh application cannot be made to the High Court. Where application for Anticipatory Bail has been rejected by the High Court, thereafter a subsequent application for Anticipatory Bail cannot be entertained by the Court of Sessions.
At the time of approaching the Courts to secure Anticipatory Bail, one will need to establish that he has reasonable belief that he may be arrested on accusation of having committed a non-bailable offence or the trial court has taken cognizance of criminal complaint and summons or warrant has been issued against him. The Application for Anticipatory Bail would not be maintainable if the Applicant has already been arrested for the same accusation and/or is already on bail/anticipatory bail for the same accusation or he has voluntarily surrendered before the trial court for in respect of the same accusation.
COMPETENT JURISDICTION
An Applicant can approach the Courts within whose jurisdiction he apprehends his arrest. It is irrelevant that the alleged offence has been committed outside the jurisdiction of such Courts. If the Courts do not have territorial jurisdiction it may yet grant Anticipatory Bail for a short term with adequate safeguards for approaching the Court having jurisdiction to entertain such application after considering the facts and circumstances involved therein
DISCRETION OF COURTS TO GRANT ANTICIPATORY BAIL
Anticipatory Bail is generally exercised sparingly in appropriate cases with due care and caution. A few circumstances under which Anticipatory Bail may be granted are:
· A special case is made out which would indicate that there are sufficient reasons to believe that the Applicant may be arrested on baseless grounds.
· The accusations have been made with a dishonest motive or with an intention to cause injury/humiliation to the Applicant and having him so arrested.
· The allegations against the Applicant are of vague or general nature.
· The name of accused is not mentioned in the First Information Report ("FIR")
· The applicant satisfies to the Court granting Anticipatory Bail that he hails from a respectable family, has deep roots in the society and is not likely to abscond or evade the process of the Court or in any way hamper investigation.
· The Complainant is an influential person as against the accused who is a weak person or if a case is instituted against a political rival.
REFUSAL OF ANTICIPATORY BAIL A
few circumstances under which Anticipatory Bail may be refused are:
· The possibility of the Applicant to abscond in the event cognizance is taken by the trial court or warrant of arrest has been issued by the trial court.
· If the prima facie case with which the Applicant has been charged can be made out.
· The Applicant has previously undergone an imprisonment on conviction in respect of any cognizable offence.
· Where a case can be made out that the Applicant is capable of influencing investigation to his advantage.
· When a case for a reasonable claim to secure incriminating material information likely to be received from the Applicant can be made out.
· When a legitimate case for remand of the Applicant/offender to the police custody is be made out by against the Applicant.
· Application preferred on the ground of Sickness alone is not sufficient. Application has been preferred for offences not yet committed or with regard to accusations not so far leveled.
· Status in life, affluence or otherwise would not be relevant considerations for the Court granting Anticipatory Bail.
INTERIM PROTECTION
When there is no likelihood of the Applicant fleeing from justice or tampering with the evidence or clear case of custodial interrogation is not made out and the Application for Anticipatory Bail cannot be heard forthwith then an interim protection can be provided to the Applicant.
DURATION AND EXPIRY OF THE ANTICIPATORY BAIL
The duration and expiry of the Anticipatory Bail is decided by the Court granting the same. An Anticipatory Bail once granted must be held to be operative till the conclusion of the trial unless it is cancelled by the Court granting Anticipatory Bail. After expiry of the period for which the Anticipatory Bail was granted, the Court granting Anticipatory Bail may extend the duration for the same. In certain cases the Anticipatory Bail orders can be of a limited period and on expiry of that duration or the extended duration, the Court granting Anticipatory Bail may leave it the Trial Court to take appropriate measures after the expiry the duration or the extended duration of Anticipatory Bail.
CANCELLATION OF ANTICIPATORY BAIL
The power to cancel the Anticipatory Bail is vested with the Court who grants the same, which can be due to new or supervening circumstances arise after the release on bail such as abuse of liberty by hampering the investigation or tampering with witness or committing same or similar offence or a case is made out in a petition filed under Section 439 of Criminal Procedure Code, 1973. The Courts may therefore grant anticipatory bail, but with a view to prevent the person hampering the investigation provision/s may be made by the Court granting anticipatory bail subject to such conditions as it thinks fit.
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