RSTV: IN DEPTH- ANTICIPATORY BAIL
The Supreme Court delivered a significant verdict, ruling that no time limit can be set while granting anticipatory bail. It also referred to the freedom movement when people were jailed for protesting against the British rule. While lamenting that arbitrary arrests continue to be a pervasive phenomenon. The Top Court asserted that the discretionary power of courts to grant anticipatory bail can’t be curtailed and can continue till the end of a trial. Over the years, anticipatory bail has come to mean a safeguard for a person who has false accusation or charges made against him or her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he or she is arrested.
- It is the provisional release of an accused in a criminal matter in which the court is yet to announce a judgment.
- The expression ‘bail’ means a security deposited to appear before the court for release.
- A ball is granted to an accused after presenting a bail bond to the court.
- The primary objective of arrest is to ensure that the accused in a criminal case appears before the court for the conveyance of justice.
- However, if the person’s presence can be guaranteed for the court trial without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as a conditional liberty to the accused.
Types Of Bail In India:
There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal matter:
- Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC.
- Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
- Anticipatory Bail: A person who discerns that he may be arrested by the police for a non- bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.
How To Apply For Bail In India?
· The process to apply for a bail depends upon the stage at which the criminal matter is. In case, the person is not yet arrested by the cour, but fears that an FIR may be filed against him with the police, the person can hire a criminal defence lawyer in India to file an anticipatory bail application.
· For instance, if the person has an apprehension that his wife may file a false 498A case against him, he can obtain an anticipatory bail before the police register a complaint against him.
· If the police have already arrested the person and taken him to the police station, the bail lawyer can file a bail as per the bail application format given in the CrPC. The bail application is to be filed and approved by the court and then presented to the police to get the arrested out of jail.
· The bail amount or the bail bond to be deposited depends upon the discretion of court. However, a standardised bail amount is set and deposited for bail in less serious criminal cases.
- Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code.
- Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
- On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this).
- Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.It is only issued by the Sessions court and High Court.
- When any person apprehends that there is a move to get him arrested on false or trumped up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- Anticipatory bail can be granted by Sessions Court and High Court.
The High Court or the court of session may include such conditions 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.
- The applicant must show by disclosing special facts and events that he or she has reason to believe, that he or she may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
Observations made by the Court:
- If there are any special circumstances necessitating a limit on the tenure of anticipatory bail, it is open for the court to do so. Nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting relief in terms of time.
- When Parliament has not thought it appropriate to curtail the rights of the citizens, it would be not appropriate for the SC to curtail powers granted to courts with regard to anticipatory bail
- Anticipatory bail application could be moved by a person even before filing of FIR.
- The court, while granting anticipatory bail, should examine seriousness and gravity of the offence to impose any condition on the petitioner, if necessary.
Conditions For Bail In Bailable Offences:
- Section 436 of the CrPC lays down that a person accused of any bailable offence under the IPC can be released on bail.
- Bailable offences under the IPC include
- unlawful assembly (Section 144 of CrPC),
- payment of bribe during elections,
- fabrication of false evidence,
- sale of poisonous food or drink knowingly,
- participation in riots,
- being armed with deadly weapon,
- furnishing false information,
- threat of injury to public servant,
- selling adulterated drug,
- selling obscene book,
- causing death by negligence (Section 304A),
- criminal defamation, etc.
- In any of the above-mentioned offences, a person can hire a bail/anticipatory bail lawyer in India to apply for bail. However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offence:
- There are sufficient reasons to believe that the accused has not committed the offence.
- If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
- The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years.
Conditions For Bail In Non-Bailable Offenses:
- An accused does not have the right to apply for bail in case of a non-bailable offence.
- The power to release a person on bail in a non-bailable offence lies with the court.
- Section 437 of the CrPC lays down the power of court to grant a bail to a person even in a non-bailable offence.
- Non-bailable offences under the IPC include
- waging or attempting to wage war against the government,
- counterfeit of Indian currency,
- adulteration of drug,
- murder (Section 302),
- culpable homicide not amounting to murder (Section 304),
- dowry death (Section 304B),
- abetment of suicide,
- abetment of suicide,
- abduction of child under 10,
- trafficking of person,
- rape (Section 376),
- cruelty by husband or his relatives (Section 498A), etc.
- A person can get legal advice from a good criminal law lawyer in India to apply for a bail in non-bailable offence. The conditions on which the court grants a bail in a non-bailable offence are as follows:
- If the accused is a woman or child, bail can be granted in a non-bailable matter.
- If there is a lack of adequate evidence, the court can grant a bail in non-bailable offence on discretion.
- If there is a delay in registering the FIR by the complainant.
- If the person accused is physically or gravely sick.
- If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.
· An accused is free on bail as long as the same is not cancelled.
· The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.