Concept of Anticipatory bail Under CrPC 1973
- What do you understand by Anticipatory bail?
- When is it granted and when it may be refused?
- What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such a situation he may apply to the Court of Session or the High Court under Section 438 for a direction that he is released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.
Section 438 – 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 Sessions 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.
While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. A mere hunch or fear is not enough. He must also provide evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.
In granting such a direction the court takes into account the following considerations –
1. The nature and gravity of the accusation.
2. The antecedents on the applicant include the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused fleeing from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.
It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to the Court of Session and High Court. Thus, a person can approach either of the courts to get this relief.
As per Section 438 A, the court may also grant an interim order and in that case, an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, 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.
A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.
Refusal of Anticipatory Bail
Although there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are –
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437.
Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail.
In general, the court has wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that it is not in the interest of justice.
Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases, it has been held that when Section 438 permits granting anticipatory bail, it is implicit that the court making such an order is entitled upon appropriate considerations to cancel or recall the order.
Keywords: Concept of Anticipatory bail, Concept of Anticipatory bail Under Code of Criminal Procedure, 1973, Anticipatory bail Definition, Anticipatory bail in India, Anticipatory bail Under CrPC, 1973.
Click here to read the Bare Act of Code of Criminal Procedure, 1973
