Manishek Kr. Singh, City Academy Law College
Anticipatory bail refers to the concept that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non bail able offence. Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to the release of the falsely accused person even before he/she is arrested.
The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail in it. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”, it observed in Para 39.9 of its report (Volume I) and the same is set out in the act. The law commission recommended acceptance of the suggestion.
In the 48th Report July 1972 finally the commission introduces a provision for the grant of anticipatory bail. The bill was completely in accordance with the Previous law commission recommendation that is the 41st law commission.
- Provision according to Indian context:-
Under Section 438 of the Criminal Procedure code there is a provision for a person to seek “Anticipatory Bail”. To get anticipatory bail the person seeking it, must approach the Court of Session or the High Court and citing section 438 of the CrPc and at the same time the person seeking it have to prove that the basis on which he/she is approaching is valid.
- CONDITIONS THAT ARE TAKEN INTO CONSIDERATION BY THE COURT :-
At the time of Granting an anticipatory Bail court considered following things:
- The person will make him/herself available for interrogation by the police as and when required by them.
- The individual shall not directly or indirectly make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police.
- An assurance that the Person shall not leave India without prior permission from the court.
- SCOPE OF ANTICIPATORY BAIL:-
The Supreme Court in the case of Siddharam Satlingappa mhetre Vs. State of Maharastra has comprehensively examined the scope and object of Anticipatory Bail under CrPc.
- It is apparent from the Statement of Objects and Reasons for introducing section 438 in the CrPc, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases.
- One of the major purposes of Incorporating Section 438 in the CrPc was to recognize the importance of Personal liberty and freedom in a free and democratic Country. The particular section shows the wisdom of the legislature which is quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court of law.
- AMENDMENT ACT, 2005
- If the court does not reject the application for the grant of anticipatory bail, and make an interim order of bail, it should forthwith give notice to the Public Prosecutor and Superintendent Of Police and the question of Grant of Bail would be re-examined in the light of Representative contentions of the Parties.
- The presence of the person seeking anticipatory bail should be made mandatory at the time of Hearing of the application for grant of anticipatory bail subject to certain exceptions.
In Balchand Jain’s case AIR 1977 S.C 366 the Supreme court laid down the following three propositions with respect to grant of anticipatory bail:
- The power under Sec. 438 is of an extraordinary character, and must therefore be exercised sparingly and in exceptional cases only
- The power is not unguided or uncanalised, but the limitations imposed by Sec.437 are to be read into Sec.438.
In Country like India where the citizens and non-citizens both are given such facilities and freedom with dignity at the top, Section like 438 and 437 of CrPc look like the corner stone of the legal system it indicates the concern of the legal system towards its people. It shows how the law is related with the peoples socially and emotionally too.