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Provisions and Procedures to Get Anticipatory Bail under Criminal Law

calendar27 Jun, 2023
timeReading Time: 7 Minutes
Provisions and Procedures to Get Anticipatory Bail under Criminal Law

A procedure to Get Anticipatory Bail which is Anticipatory Bail is a legal provision that allows an individual to seek bail in anticipation of an arrest in connection with a non-bailable offence. It is a preventive measure that enables a person to avoid arrest, detention, and harassment by the police. The provision of Anticipatory Bail is enshrined in Section 438 of the Code of Criminal Procedure, 1973[1], in India.

The objective of Anticipatory Bail is to protect the individual’s fundamental rights and prevent the abuse of power by law enforcement agencies. The provision empowers the courts to grant bail to a person before his arrest, provided certain conditions are fulfilled. This allows the individual to participate in the investigation process without being taken into custody.

Anticipatory Bail is an important legal provision that ensures the protection of citizens’ rights and is a significant tool in safeguarding against arbitrary arrests and detentions. It is an essential part of the criminal justice system that upholds the principles of fairness and justice.

Legal provisions for Anticipatory Bail under Criminal Law

The legal provision for Anticipatory Bail in India is enshrined in Section 438 of the Code of Criminal Procedure, 1973. This provision allows an individual to seek bail in anticipation of an arrest in connection with a non-bailable offence. The Section provides that a person can approach the High Court or the Court of Sessions for Anticipatory Bail.

According to Section 438, the court may grant Anticipatory Bail subject to certain conditions that it deems fit. These conditions may include the imposition of restrictions on the individual’s movement, such as surrendering their passport or appearing before the police for questioning. The court may also require the individual to provide a surety or a bond.

The purpose of Anticipatory Bail is to enable a person to avoid arrest and to secure their release in anticipation of their arrest. This provision serves as a safeguard against arbitrary and wrongful arrests and detentions, protecting the individual’s fundamental rights.

Over the years, landmark cases have clarified the legal provisions of Anticipatory Bail and provided guidance to the judiciary on how to interpret and apply these provisions. These cases have ensured that the provision is used in a fair and just manner and that it serves its intended purpose of protecting the individual’s fundamental rights.

Eligibility Criteria for Anticipatory Bail

The procedure to Get Anticipatory Bail in India, the following criteria must be met:

  • Person seeking Anticipatory Bail:

The person seeking Anticipatory Bail must be the person who is likely to be arrested in connection with a non-bailable offence.

  • Nature of the Offence:

The offence in question must be non-bailable. Non-bailable offences are those offences that are punishable by imprisonment for three years or more.

  • Reasonable Apprehension of Arrest:

The person must have a reasonable apprehension of arrest in connection with the non-bailable offence. The apprehension must be based on concrete facts and circumstances that suggest that the person may be arrested.

  • Cooperation with the Investigation:

The person seeking Anticipatory Bail must cooperate with the investigation. They must not obstruct the investigation or tamper with evidence.

  • Availability of Alternate Remedies:

The person must not have any other remedy available to them under the law for seeking bail.

If these criteria are met, the person seeking Anticipatory Bail may approach the High Court or the Court of Sessions with an application for Anticipatory Bail. The court may grant Anticipatory Bail subject to certain conditions that it deems fit, such as the imposition of restrictions on the individual’s movement, the provision of a surety or a bond, or the requirement to appear before the police for questioning those are the procedure to Get Anticipatory Bail.

Procedure for Filing Anticipatory Bail

The procedure for filing an application for Anticipatory Bail in India is as follows:

  • Filing the Application:

The person seeking Anticipatory Bail must file an application with the High Court or the Court of Sessions, depending on the jurisdiction in which the offence was committed. The application must contain details of the offence, the reasons for seeking Anticipatory Bail, and any other relevant information.

  • Supporting Documents:

The application must be supported by an affidavit that contains the necessary details and documents, such as medical certificates, character certificates, or any other relevant documents that support the case for Anticipatory Bail.

  • Notice to the Public Prosecutor:

The person seeking Anticipatory Bail must serve a copy of the application and the supporting documents to the public prosecutor. This notice must be served sufficiently in advance to allow the public prosecutor to prepare their arguments.

  • Notice to the Police:

The person seeking Anticipatory Bail must also serve a copy of the application and the supporting documents to the police station concerned. This notice must be served to inform the police that the person has approached the court for Anticipatory Bail.

  • Hearing of the Application:

The court will hear the application and the arguments presented by the person seeking Anticipatory Bail, the public prosecutor, and the police. The court may also ask the investigating officer to present their case.

  • Order of the Court:

Based on the arguments presented, the court may grant or reject Anticipatory Bail. If the court grants Anticipatory Bail, it may impose certain conditions that the person seeking Anticipatory Bail must comply with. The court may also require the person to provide a surety or a bond.

If the person complies with the conditions imposed by the court, they may avoid arrest in connection with the non-bailable offence for which they have sought Anticipatory Bail which are the procedure to Get Anticipatory Bail.

Grounds for rejection of Anticipatory Bail

There are several grounds on which an application for Anticipatory Bail may be rejected by the court. Some of these grounds are:

  • Non-Compliance with the Procedure:

If the person seeking Anticipatory Bail does not comply with the procedure for filing an application, the court may reject the application.

  • Lack of Eligibility Criteria:

If the person seeking Anticipatory Bail does not meet the eligibility criteria specified under the law, the court may reject the application.

  • Possibility of Tampering With Evidence:

If the court believes that there is a possibility that the person seeking Anticipatory Bail may tamper with the evidence or influence witnesses, it may reject the application.

  • Likelihood of Absconding: If the court believes that there is a likelihood that the person seeking Anticipatory Bail may abscond or flee from justice, it may reject the application.
  • Public Interest: If the court believes that granting Anticipatory Bail would not be in the public interest or would be detrimental to the administration of justice, it may reject the application.

It is important to note that the decision to grant or reject Anticipatory Bail is at the discretion of the court and is based on the facts and circumstances of each case.

Difference between Anticipatory Bail and Regular Bail

Anticipatory Bail and Regular Bail are two types of bail that can be granted to an accused under Indian criminal law. Here are some of the key differences between Anticipatory Bail and Regular Bail:

  • Meaning:

Anticipatory Bail is granted to a person who anticipates arrest in a non-bailable offense, while Regular Bail is granted to a person who has been arrested in a non-bailable offense.

  • Purpose:

The main purpose of Anticipatory Bail is to protect a person from unnecessary arrest and harassment, while the purpose of Regular Bail is to secure the release of a person who has been arrested.

  • Time of Filing:

Anticipatory Bail can be filed by a person before arrest, while Regular Bail is filed after the arrest.

  • Eligibility Criteria:

A person can apply for Anticipatory Bail only if there is a reasonable apprehension of arrest. In contrast, a person can apply for Regular Bail only after the arrest has taken place.

  • Procedure:

The procedure for obtaining Anticipatory Bail involves filing an application before the court or police station with jurisdiction. In contrast, Regular Bail is applied for in court, after the arrest has taken place.

  • Conditions:

The conditions that come with Anticipatory Bail and Regular Bail may vary depending on the individual case. However, in general, Anticipatory Bail may require the accused to cooperate with the police investigation or impose conditions such as reporting to the police station periodically, surrendering of the passport, or prohibiting leaving the country, etc. Regular Bail may require the accused to produce a surety, provide their residential address, and not interfere with the evidence or witnesses in the case.

In summary, the key difference between Anticipatory Bail and Regular Bail is that Anticipatory Bail is granted before arrest, while Regular Bail is granted after arrest. Anticipatory Bail is sought to avoid arrest, while Regular Bail is applied for to secure release after an arrest.

Notable Cases of Anticipatory Bail under Criminal Law in India

There have been several notable cases of anticipatory bail under criminal law in India. Some of these cases include:

  • Sushila Aggarwal and others v. State (NCT of Delhi) and another:

In this case, the Supreme Court of India held that a person cannot be granted anticipatory bail if they are likely to abscond and evade the investigation or trial.

  • Siddharam Satlingappa Mhetre v. State of Maharashtra:

The Supreme Court held that the power to grant anticipatory bail should be exercised cautiously and only in exceptional cases, where the applicant can show that their arrest is imminent and the allegations against them are false or frivolous.

  • Gurbaksh Singh Sibbia v. State of Punjab:

The Supreme Court held that anticipatory bail should not be denied merely because the crime is serious or the punishment is severe, and the court should consider factors such as the nature and gravity of the offense, the role of the accused, the possibility of the accused absconding, and the likelihood of the accused tampering with evidence.

  • Arnab Goswami v. State of Maharashtra:

In this case, the Bombay High Court granted anticipatory bail to journalist Arnab Goswami in a case related to abetment of suicide, holding that the accused was not a flight risk and that there was no evidence of tampering with evidence or witness intimidation.

  • P. Chidambaram v. Directorate of Enforcement:

In this case, the Delhi High Court granted anticipatory bail to former Finance Minister P. Chidambaram in a money laundering case, holding that the allegations were based on documentary evidence and that there was no evidence of tampering with evidence or intimidation of witnesses.

These cases have helped clarify the legal principles and procedures for granting anticipatory bail in India, and they have played an important role in protecting the rights of individuals accused of crimes.

Importance of Anticipatory Bail in Criminal Cases

In conclusion, procedure to get Anticipatory Bail plays a crucial role in safeguarding the fundamental rights of individuals accused of crimes. It provides a mechanism for individuals to seek protection against arbitrary arrest and detention by the authorities. Anticipatory bail ensures that the individuals are not subjected to the trauma and humiliation of arrest and detention unless there are reasonable grounds for doing so.

Anticipatory bail is an important tool for preventing the misuse of power by the authorities, and it helps to ensure that justice is served in an impartial and fair manner. The eligibility criteria, procedure, and grounds for rejection of anticipatory bail have been carefully laid down by the courts to ensure that it is granted only in exceptional cases where the applicant can show that their arrest is imminent, and the allegations against them are false or frivolous.

Conclusion

In conclusion, procedure to get Anticipatory that the Citizens need to be aware of their rights and the legal provisions for seeking anticipatory bail to protect themselves against arbitrary arrest and detention. The judiciary also plays a crucial role in ensuring that anticipatory bail is granted only in deserving cases and that it does not impede the progress of a fair trial.

Overall, the importance of anticipatory bail in criminal cases cannot be overstated, and it remains a crucial safeguard against the abuse of power by the authorities.

Read Our Article: What Is Bail In India?

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