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What is Anticipatory Bail in India?
Anticipatory Bail or pre-arrest bail is a kind of bail that safeguards a person who apprehends that he might get arrested on false or made-up charges, or due to enmity with someone, or a false case will be slapped against him, or on the accusation of having committed a non-bailable offence. It is issued prior to the arrest of a person. This remedy is available to a person under Section 438 of the Code of Criminal Procedure, 1973.
Section 438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in
such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) 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, be 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).
When to apply for anticipatory bail?
Thus, when any person apprehending his arrest, may apply to Court of Session or the High Court for grant of anticipatory bail in the event of his arrest, and the Court at its discretion may if it thinks fit and depending upon the circumstances and seriousness of the offense, grant him anticipatory bail under this Section, with a direction that in the event of such arrest, he shall be released on bail.
Anticipatory bail can be granted in a non-bailable offence and will be valid only if the person has no direct connection or when the Court believes that the person is innocent. No Regular Bail shall be granted by the Magistrate on the basis of an order of Interim Anticipatory Bail granted by the Superior Court and the matter is still pending for final disposal.
When does the Court grant Anticipatory Bail?
- the nature and gravity of the accusation.
- 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 offense
- the possibility of the applicant fleeing from justice.
- where the accusation has been made 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.
What are the Conditions imposed by the Court while granting Anticipatory Bail?
When the High Court or the Court of Session makes a direction, it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
- a condition that the person shall make himself available for interrogation by the police officer as and when required;
- a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
- a condition that the person shall not leave India without the previous permission of the court.
- such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
What are the conditions for rejection or cancellation of Anticipatory Bail?
The High Court or Court of Session may be cancelled the anticipatory bail
- When a person against whom a warrant had been issued, is absconding or concealing himself in order to avoid execution of the warrant and declared as a proclaimed offender or absconder in terms of section 82 of CrPC
- At the time of granting anticipatory bail the Court imposes certain terms and conditions which if flouted, the Court may cancel such anticipatory bail.
- On receiving an application for cancellation of the anticipatory bail either by a complainant or the prosecution the Court may be cancelled it if it finds it necessary.
It is to be noted here that the court which has the power to grant Anticipatory Bail, also has the power to cancel Anticipatory Bail. Cancellation of Anticipatory Bail may arise due to new circumstances or situations arising after the bail. There can be situations where a person granted anticipatory bail, may abuse the liberty by tampering with evidence or giving threats to witnesses or hampering investigations or might commit the similar or same offence. Also, Anticipatory bail may get cancelled if a case is made out in a petition under section 439 of the Criminal Procedure Code.
The court which granted the anticipatory bail can also recall it and can also direct to arrest the person who waas granted anticipatory bail and taken into custody on the filing of an application by the complainant or the prosecution.
Case Laws:
- Gurbaksh Singh Sibbia Etc vs State Of Punjab OF 1980 – SC – Grant of pre-arrest bail is a matter of discretion of the court which shall depend upon the merits of the case.
- CRIMINAL APPEALS NO. 822-823 OF 2023 – SC- Top Court quashes Order granting anticipatory bail to accused in casting couch matter, asks Registry to redact name of prosecutrix from records. Justices A.S. Bopanna & Hima Kohli [17-03-2023]
- CRIMINAL APPEAL NO.1209 OF 2021 – SC – Top Court reiterated that when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail.
- M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. – SC- Top Court set aside the order granting anticipatory bail as the accused fraudulently misappropriated the money of the affected farmers for road widening.
- Sidhram Mhetre v. State of Maharshtra (SC (2011) 1 SCC 694 – SC – Apex Court clarified that the power to excise under section 438 is extraordinary but it does not mean that it could be only exercised in rarest of rare cases.
- X vs Arun Kumar C.K. Criminal Appeal No. 1834/2022 -SC – Anticipatory bail cannot be granted merely because custodial interrogation is not required; Court should consider prima facie case.
- Rajesh Seth v. State of Chhattisgarh SLP (Crl.)No. 1247/2022 – SC- Indefinite Adjournment In Anticipatory Bail Matter Is Detrimental To Valuable Right Of A Person.