Anticipatory Bail

 ANTICIPATORY BAIL

Introduction

Anticipatory bail, as the name implies, is bail granted to a person who is about to be arrested. It is a preventive relief that was not included in the 1973 Code of Criminal Procedure ('CrPC') at the time. The need for anticipatory bail arises primarily because powerful people often try to incriminate their rivals in bogus cases in order to disgrace them or for other reasons by having them imprisoned in jail for a few days. Apart from false cases, where there are reasonable grounds to believe that a person accused of an offence will not abscond or otherwise misuse his liberty while on bail, there appears to be no justification for requiring him to first submit to custody, then remain in prison for a few days before applying for bail. The goal of anticipatory bail rules is to ensure that no one is imprisoned in any way until and until they are found guilty.

Factors

When a person has grounds to suspect that he will be arrested for a non-bailable offence, he can seek anticipatory bail from the High Court or the Court of Session under section 438 of the CrPC. While granting anticipatory bail, certain factors are considered, including:

 a. The nature and gravity of the accusation; 

b. The applicant's antecedents, including whether he has previously been imprisoned on a court's conviction for any cognizable offence; and

 c. The applicant's ability to flee the criminal system,

d. If the charge is made with the intent to injure or humiliate the applicant by having him arrested, either reject the application right away or give an interim order for anticipatory bail.

Conditions

When granting anticipatory bail, the High Court or the Court of Sessions may impose the conditions outlined in Section 438. (2). The restrictions set forth in that section are merely examples; the court may impose further conditions as it sees fit in order to strike a balance between an individual's right to privacy and the police's investigative powers. While granting such bail, the following conditions are imposed:

a. The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.

b. The applicant should not leave the country without the previous permissions of the court.

c. The applicant should submit local residential address, native address and contact number to the concerned police station.

d. The applicant should not make any inducement, threat, promise etc. to any person acquainted with the facts of the case.

Conclusion

The purpose of S. 438 was to protect individuals' personal liberty, but the use of the words ‘may, if it thinks fit' in S. 438(1) of the CrPC, as well as the lack of any specific restraints on the exercise of the power to grant anticipatory bail, clearly indicates that the legislature intended to give the courts broad discretion in granting anticipatory bail. With the tremendous surge in cases of socio-economic offences in India where the accused have fled the country to avoid prosecution, the courts should exercise caution in their use of this broad discretion.