Anticipatory Bail mentioned under sec 438 of CrPC provides protection to a person who has committed a bailable offence or has not committed any offence but believes that he can be arrested in any ongoing issue. Such a person can move to the Session Court or the High Court for anticipatory bail and it is the discretion of the court to grant the anticipatory bail or not.
The provision for anticipatory bail was not present in the CrPC, 1973, but it was still granted in certain cases by the High Court through inherent powers vested with it. The Law Commission in its 41st Report suggested the introduction of a provision in the code enabling the session court and the High Court to grant anticipatory bail on the happening of the events. Taking into consideration the recommendation given by the law commission, Parliament while enaction Code 1973 added this provision with the heading’ Direction for grant of bail to person apprehending arrest’.
This idea gained traction when it became apparent that there was a tendency to falsely accuse someone in order to harm their reputation. There was an increase in the number of cases when well-known people were wrongly accused by their political enemies in an effort to embarrass and bother them by having them jailed. A person's right to life includes the important component of personal liberty, which cannot be compromised. At the same time, it was felt that there are cases and instances where the accused has no criminal antecedents and is not likely to abscond or avoid trials. The necessity for protecting such individuals from unnecessary police harassment has birth to the concept of anticipatory bail.
B. Directions for grant of Bail
The direction for grant of bail has been explained in Section 438 of CrPC. The procedure is as follows-
1. A person with reasons to believe that he may be arrested has to apply to the High Court or the Session Court, and the court thinks fir may accept the application. It may into consideration the following factors-
- The nature and gravity of the accusations.
- The charge against the applicant intends to harm or humiliate him by having him detained.
- The applicant’s record includes whether he has been imprisoned or sentenced by a court for any cognizable offence.
- The potential of the applicant to defy justice.
2. An officer in charge of a police station may arrest the applicant without a warrant based on the accusation mentioned in the application if the High Court or Court of Session has not issued an interim order or has rejected the application for anticipatory bail.
3. The public prosecutor must receive a seven-day notice from the applicant when a court issues an interim order; the application is not accepted or denied until this notification has been addressed.
4. It is mandatory for the applicant seeking anticipatory bail to be present at the time of the final hearing of the application and passing of the final order by the court. The court considers such presence necessary in the interest of justice.
5. While granting anticipatory bail, the court may impose certain conditions on the applicant. The conditions are as follows-
6. When asked, such a person makes himself available to be questioned by a police officer.
7. That person has to give the local police station their phone number, native address, and address where they now reside.
8. That the person will not, directly or indirectly, provide any enticement, threat, or guarantee to anybody aware of the case's facts to keep him from telling the court or a police officer about such information.
9. the person would not depart India's borders without a court's prior approval.
10. Any other additional condition under Section 437(3) may be imposed as if the bail was granted under that Section.
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C. Who can apply for anticipatory Bail?
Anticipatory bail solely addresses arrest and has nothing to do with the filing of a formal complaint, charge sheet, or arrest warrant. The accused may seek the court anticipatory bail if he believes there is a possibility he may be taken into custody by the police. The applicant will be released if the judge finds the accused credible.
The accused may request anticipatory bail if he fears being arrested due to the issuance of a non-bailable warrant against him. Additionally, the petitioner in a comparable situation should be granted bail when the other accused has more time to appear in court. Denying an accused person anticipatory bail is inappropriate because another accused person has been granted regular bail.
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In the 1977 decision of the State of Rajasthan, Jaipur v. Balchand, the Hon. Supreme Court ruled that "jail is an exception and bail is a rule." A person falsely accused of a crime may utilize anticipatory bail to defend against unjust incarceration. In extraordinary cases where the courts believe the petitioner is being wrongfully accused, they must use the authority of anticipatory bail. Furthermore, anticipatory bail is a legal tool that prohibits the accused from abusing his freedom or avoiding punishment in addition to protecting his interests.