Basic Understanding of Anticipatory Bail

Bail is a temporary release of an accused on condition of his making an appearance if and when required. Bail is granted with or without sureties. Under section 438 of the Code of Criminal Procedure, bail is granted either by the session court or by the High Court. Article 21 of the Constitution of India enshrines the right to life and personal liberty.

Therefore, detaining an individual unlawfully is illegal. This article describes the motive and reason behind introducing the concept of anticipatory bail. Other provisions concerned with bail such as operativeness, eligibility and conditions to obtain anticipatory bail has also been discussed.

When bail is granted to the individual who is suspected to be arrested by police for a non-bailable offense before the arrest is made. Anticipatory bail is where an individual apprehending arrest for having committed any nonbailable offense applies to the High Court or Court of Session for granting bail before the arrest is made.

Law regards bail as the rule and jail as the exception. The right provided in Article 21 is one of the most important rights. In anticipatory bail, an individual seeks bail in the anticipation of being arrested for having committed a non-bailable offense.

Earlier anticipatory bail was not included in the Code of Criminal Procedure. Anticipatory bail is a preventive relief. The motive behind introducing the concept of anticipatory bail is that an individual should not be detained illegally till he or she has been held guilty. Due to certain influential persons who try to implicate their rivals or opposite party in false cases to disqualify them or disgrace them by detaining them in jail, it was necessary to grant anticipatory bail.

Apart from the false misleading cases, if there exist no reasonable grounds that the accused is likely to abscond then his liberty should not be curtailed. However, when an individual apprehends that he is likely to get arrested or has reason to believe the same for committing a non-bailable offense, can move to the High Court or Court of Session under section 438 for anticipatory bail.

Before granting anticipatory bail, the High Court or Court of Session takes into consideration the following thing.

• The nature as well as the gravity of the accusation of the person,
• The previous history of the individual applying for anticipatory bail, whether he or she has been previously convicted of any cognizable offense and undergone any imprisonment,
• The chances of the person to escape from the hands of justice,
• If there is reason to believe that to humiliate or injure the reputation of the individual against the individual, such accusation has been made, then the Court shall reject such application by further issuing interim order for granting anticipatory bail.

In the process of granting anticipatory bail, the order from Court aids in preventing the individual from being detained while the arrest is being made. As mentioned under section 438 of the Code of Criminal Procedure, in the case of granting interim bail to the applicant the High Court or Court of Session gives a show-cause notice attested with the copy of the interim order.

This notice with the copy of the order is served on the Public Prosecutor as well as the Superintendent of Police. This gives the Public Prosecutor a reasonable opportunity for the application to be heard by the Court.

• When a summons has been issued for an appearance, anticipatory bail can be applied by the accused.
• If an individual commits an act that is likely to be interpreted as a crime although he acts in a manner as exercising his rights, cannot be granted anticipatory bail.
• In the case of regular bail, bail is granted after arrest whereas, in the case of anticipatory bail, bail is granted when an individual is apprehending arrest.

Anticipatory bail is applied by the individual apprehending arrest for committing a non-bailable offense. When an individual believes there exists a chance of getting arrested in a false case or injuring the reputation of any individual can move to the High Court or Court of Session for applying for anticipatory bail under section 438 of the Code.

However, anticipatory bail is not granted to an absconder or proclaimed offender Under section 82 of the Code. Such accused is termed as an absconder or proclaimed offender due to non-cooperation in the process of investigation.

It was held by the Apex Court in State of M.P v. Pradeep Sharma, that the relief of anticipatory bail cannot be granted to a person against whom a warrant is issued and such person is absconding for avoiding execution of the warrant. Therefore, such a person has been termed as a proclaimed offender under section 82 of the Code.

Section 438(2) further provides conditions to be imposed while granting bail. The High Court or the Court of Sessions has the right to impose the following conditions while granting anticipatory bail. Apart from the conditions mentioned in the sub-section the Court can also impose such other conditions as it thinks fit.
 

• The person applying for anticipatory bail is required to make himself present for the process of investigation by a police officer as directed by the Court or as needed by the police officer.
• Without prior permission of the Court, the applicant cannot leave the country.
• The applicant is required to provide his or her residential address, native address as well as contact number at the concerned police station.
• The applicant should not induce, pose threat or promise, etc., to such an individual who is acquainted with the facts of the case.

While granting anticipatory bail, no such condition directing the release on bail shall be applied for a specific period of days after the arrest, by the Court. When such a condition is imposed it bars the effect of the order by disabling the applicant from applying for regular bail under section 427 of the Code.

Regular bail is granted after the arrest has been made. Section 438 does not have an overriding effect on section 437 of the Court. Therefore, the power of the High Court or Court of Session is limited under section 438 while granting anticipatory bail.

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