What is Anticipatory Bail?
Anticipatory bail or pre arrest bail is taken prior to arrest. However, it becomes effective from the time of arrest. As the word anticipation itself means, it is in expectation of some sort of accusation by the applicant. The provisions in law are laid out U/s 438 of Criminal Procedure Code, 1973. The anticipatory bail can be granted even after the criminal Court has taken cognizance, and summons or warrant has been issued by the Court. The anticipatory bail under Section 438 may be granted to government servants, minors, women, old and infirm persons, handicapped persons, persons having permanent disability, persons who are involved in pretty cases, persons who are likely to be harassed in police custody. For other categories of cases, the general law of bail is already provided in Section 439 of the Code.
When is it granted?
- Anticipatory bail is granted when a person expects an arrest in a non-bailable.
- For an offense against which police is not empowered to grant bail.
- The court is convinced that the investigation will not be hampered if the accused is not arrested.
- The Best Advocates for anticipatory bail takes the challenging task of bringing out the merits of the case to convince the court.
By Whom is it granted?
- Anticipatory or Pre-Arrest Bail is granted by the Court of Sessions. In case of rejection by the Sessions Court, the High Court can be approached.
- High Court can also directly be approached for the grant of anticipatory bail, however this practice is discouraged by the best advocates for anticipatory bail, as it eliminates a step for appeal.
When is the bail not granted?
- When the application is for the offenses under certain specific statutes like the Scheduled Castes and Scheduled Tribes Act, 1989 and the Defence of India Rules, 1971.
- When the offense is serious like murder or rape.
- When the court is not convinced as to conditions for the grant of anticipatory bail.
- When the court finds that accused is likely to influence witness/ investigating authority/ temper with evidence/ poses a threat to the complainant/ complainant’s family.
- When it is likely that accused might abscond
Procedure for granting Anticipatory Bail
- An application is made to the Court of Sessions or the High Court. If the application is rejected by the Sessions Court it can be filed again in the High Court but not vice versa.
- It may be filed in the jurisdiction of the court where the accused expects the offense would be committed or where he would be arrested.
- The Court after checking various grounds like
- Nature and gravity of the offence
- If the accused has been previously charged of a cognizable offence,
- If the accused is likely to abscond trial and flee from justice.
- The court may grant an interim order for anticipatory bail giving directions under section 438 (2) CrPC. The court may also simply reject it, if the court is not convinced.
- Upon grant of anticipatory bail, it is necessary to serve notice within 7 days to the public prosecutor and the superintendent of police to give the public prosecutor/ complainant an opportunity of being heard.
- If the anticipatory bail is rejected, the police has the authority to arrest the person without the necessary warrant.
- When the person is arrested without warrant, the police in charge of the custody shall grant bail.
- The magistrate can give a warrant of bail at the first instance.
Objective of the provision of Anticipatory bail
- It is the view of law and justice to grant goodwill and benefit of doubt to a person until he is proven guilty beyond doubt. The law and justice also understands the damage to goodwill and social reputation a person may incur when implicated in an offence. To prevent such damage or harassment, and save disruption of lives merely on frivolous complaints and bald allegations, anticipatory bail is granted.
- Another objective of laying out such a relief is to prevent harassment in police custody..
Time of giving anticipatory bail
- It is provided at any time when the accused is not arrested and operates till final decision of the Court.
- Although the Supreme Court suggests keeping a time limit for the anticipatory bail.
Landmark Judgment on Anticipatory bail
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.
Dinesh Hilal Mahajan versus The State of Maharashtra,
Deopur Police station is directed to release the applicants in the event of their arrest in C.R. NO.43/2013 on furnishing P.R. of Rs.15,000/¬ each with one surety in like sum. On 30.4.2013, the Investigating Agency, through the 3.Applicants are directed to attend I.O. of Deopur police station on 14/4/2013 between 11 a.m. to 2 p.m. and whenever they are called and co-operate in the investigation.”v Public Prosecutor, made an application for cancellation of bail granted to the petitioners, on the ground that they had committed breach of the terms and conditions, on which the anticipatory bail was granted. It was contended that the petitioners had failed to attend Deopur Police Station on 14.4.2013, as directed. It was also contended that, on 13.4.2013, the first informant had filed a report at Deopur Police Station that the petitioners had been giving threats to her and that the petitioners had pressurized her to withdraw the case.
- Upon grant of pre-arrest/ anticipatory bail from the Court of Sessions or the High Court in apprehension of the arrest in the not -bailable offense, a person is released at the time of the arrest.
- The onus is on the applicant to prove that he has a genuine reason to apprehend arrest. It is recommended that the accused chooses the best Advocates for Anticipatory Bail in Chandigarh who understand the nuances of criminal law extremely well.
- Anticipatory Bail is provided in exceptional cases to prevent the accused from wrongful harassment in the police custody.
- Sufficient directions are provided by the Court to the accused so that there is no interruption in the investigation process
- The bail can be canceled any time if any directions are violated and in case of non-compliance by the accused.