What are the provisions relating to Anticipatory Bail?
What is Bail?
According to Halsbury’s Laws of England:65
..the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.
What is Anticipatory Bail?
When a person granted bail in apprehension of arrest called anticipatory bail. This is an extra-ordinary measure and an exception to the general rule of bail. When any person has a reason to believe that he may arrested for a non bailable offence. He may, before arrest, apply to high court Or court of session for bail. The court may direct, if considers it proper, release him on bail. The Act contains no provision which specifically authorizes any court to grant anticipatory bail. Therefore, application has to made under section 498 for Anticipatory Bail. Thus, the court has wide powers in connection to Anticipatory bail. Also can exercised by both the High Court Division and the Court of Session in any case without any limitation.
Direction for grant of bail to person apprehending arrest (section 438)
Sub section 1 of section 438
When any person has a reason to believe that he may arrested for a non bailable offence. He may, before arrest, apply to high court Or court of session for bail. The court may direct, if considers it proper, release him on bail. The Court may, after taking into consideration, inter-alia, the following factors :
- the nature and gravity of the offence;
- 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;
- possibility of the applicant to flee from justice; and.
- where the accusation has made with the reason of injuring or humiliating by way of arrest. Either reject the application or issue interim order for grant of Anticipatory bail.
Provided that if the High Court or court of session, has not passed any interim order or rejected the apllication. Then the police in charge can arrest the person without warrant on the basis of the accusation apprehended.
1A. Where the Court grants an interim order, it shall sent the notice along with copy of such order to Public prosecutor. It shall served within 7 days from the date of order. So that Public prosecutor will have reasonable opportunity to present his side when the application heard by the court.
1B. The applicant should compulsorily present for seeking anticipatory bail. The presence of the applicant seeking anticipatory bail shall obligatory at the time of final hearing of the application and passing of final order. If on an application made to court by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
Sub section 2 of Section 438
When the High Court or the Court of Session directs that it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including a condition that
- the person shall make himself available for interrogation by a police officer as and when required;
- person shall not, directly or indirectly, make any inducement, threat or promise to any person who can disclose the facts of the case to the court or police officer;
- the person shall not leave India without the previous permission of the Court;
- such other condition as imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
Sub section 3 of Section 438
If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
What is the need for such a provision?
The object of Anticipatory bail to prevent behind such a provision is to prevent those falsely implicated in criminal cases to be subject to jail-time. The main factors considered while granting prayers for anticipatory bail are that:
- The full and free investigation of the offence should not be hampered.
- The accused must not be subject to harassment and unjustified detention.