The concept of Anticipatory Bail

When the accused may legitimately dread arrest in situations involving cognizable offenses, the idea of anticipatory bail is put into effect. To get temporary freedom while their case is being resolved, a person may be eligible to bail. Depending on the seriousness of the accusations, a person might be able to avoid being arrested at all. However, there are instances where an arrest is made and the accused is released by the rules of the bail set forth by the Criminal Procedure Code. Anticipatory bail is a comfort for many accused parties in criminal cases, particularly those involving dowries. It is requested in advance of an arrest.

Section 438 principally covers pre-arrest bail for crimes for which there is no bail. A person who has been detained and is being held for arrest may ask the Court of Session or the High Court for a directive to be released on bail. For the lower courts, it is outside of their authority to grant anticipatory bail.

A request for anticipatory bail is made “in advance of an arrest.” Even before the person is arrested, a directive to release them on bond is given. The accused is entitled to seek anticipatory bail in the Sessions Court or High Court if there is cause to suspect that they may be detained on suspicion of committing a crime for which there is no possibility of a bailable offense. One may submit an anticipatory bail application after knowing that their wife has filed a criminal complaint against them with the police or that their family has threatened them or their family. It’s also crucial to understand whether an offense qualifies for bail or not after an FIR has been filed. Whereas in the first case, bail is automatically granted, in the second case the issue of bail is contingent upon several factors.

Procedure

It’s also crucial to understand whether an offense qualifies for bail or not after an FIR has been filed. While in the first case, bail is automatically granted, in the second case the issue of bail is contingent upon several factors.

The public prosecutor will speak to the concerned police officer. The PP would believe there were no grounds for granting anticipatory bail if there was no FIR filed. Your attorney will be requested verbally to withdraw the anticipatory bail after the judge grants this request. If the police decide to make an arrest, the attorney will formally request an oral request for a seven-day pre-arrest notice. Judges will grant pleas in all of the aforementioned situations. Accordingly, a directive will be issued. Commonly, this is referred to as the “notice bail.” The bail application would be submitted to the High Court if the Sessions Court denied it. A second application to the Supreme Court is allowed if the High Court refuses the bail as well. If an FIR has been filed, the investigating officer will submit an arrest notice. Following the identical steps outlined above, one should submit an anticipatory bail application as soon as they receive that notice.

On an application made by the complainant or the prosecution, the High Court or Court of Session may order that someone who has been released on bail be arrested and committed to custody if any of the court’s requirements are being broken.

Case Law

In the case of XXX v. State of Kerala & Ors. and connected matter, The Kerala High Court reaffirmed that Section 438(4) of the Code of Criminal Procedure (CrPC) does not impose an absolute bar in the grant of anticipatory bail to an accused of raping a minor girl provided there are no prima facie elements present warranting the arrest of the accused. The Court believed that the phrase “involving arrest” was significant and should be interpreted in light of Sections 60A (‘Arrests to be made strictly by the Code’), 41 (‘When police may arrest without warrant’), and Sections 26 (‘Courts by which offenses are triable’) of the IPC.

While correctly noting that rape is an offense against a woman’s person as well as a crime against society, which may have varying degrees of long-term effects on a victim’s development and sense of safety throughout life, the Court held that on the other hand, where such cases are blatantly false, an innocent person could not be referred to as an accused.

Asking a free question online and taking free legal advice at Lead India is the first step in beginning your path to resolving a business dispute. Anyone who wants to talk to a lawyer can contact us.