DEFINES: Anticipatory Bail
Section 438 of the criminal procedure act,1973 deals with the Anticipatory bail.
When a person is willing to get bail in anticipation of an arrest on accusation of having committed a non bailable offence. Such bail consider as Anticipatory Bail.
How to get anticipatory bail?
As per the section 438 person get Anticipatory Bail on following:
- When any person has reason to believe that he may arrest on an accusation of having committed a non- bailable offence.
- In such case he may apply to High Court or the Court of Session for a direction.
- Court may, if it thinks fit, direct that in the event of such arrest, he shall release on bail.
- Its upon consideration of factors, the Court will either reject the application or issue an interim order for the grant of anticipatory bail in the first instance.
Following conditions High court or session court issue before entertaining the anticipatory bail application of person. They are as under:
- Thus person shall make himself available for interrogation by the police officer as and when required.
- Person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted. Furthermore he should not induced the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
- Thus person shall not leave India without the previous permission of the Court.
- such other condition as may impose under sub- section (3) of section 437, as if the bail were granted under that section.
If such person thereafter arrested without warrant by an officer in charge of a police station on such accusation either at time or any time in his custody. then such officer to give bail, be shall release on bail.
Later the amendment made in 2006 under section 438 in matter how to get anticipatory bail:
“(1) Where any person has reason to believe that he may arrest on accusation of having committed a non-bailable offence. Then he may apply to the High Court or the Court of Session for a direction. Futhermore, in event of such arrest he shall release on bail. And that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) 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;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has make 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, the Court of Session, has not passed any interim order under this sub-section. Or has rejected the application for grant of anticipatory bail. Then, it shall open to an officer in-charge of a police station to arrest. Though it can done without warrant the basis of the accusation apprehended in such application.
As per Section 438 (1A), the court may also grant an interim order and in that case an opportunity given to the public prosecutor present his arguments on why the applicant should not give bail.
Further, as per Section 438 (1B), if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order.
Landmark judgement on how to get Anticipatory bail:
It mainly deals with Important parametre that court has decided needed to take for consideration while dealing with anticipatory bail. They are as under:
- he nature and gravity of the accusation and the exact role of the accused must properly comprehend before arrest made;
- The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
- The possibility of the applicant to flee from justice;
- The possibility of the accused’s likelihood to repeat similar or other offences;
- Where the accusations have make only with the object of injuring or humiliating the applicant by arresting him or her;
- Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
- The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
- The case in which the accused implicate with the help of Section 34 and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases a matter of common knowledge and concern.
- While considering the prayer for grant of anticipatory bail, a balance has to struck between two factors, namely, no prejudice should cause to free, fair and full investigation, and there should prevention of harassment, humiliation and unjustified detention of the accused;
- The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
- Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
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