“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process”.
- Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
The right to liberty is the fundamental right and also the natural right of an individual. When a person is suspected to have committed an offence the machinery of law is fomented to arrest him and to bring him to trial and punish him if the suspect is found guilty. The act of arrest deprives a man of his liberty. The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well recognized principle among all the judicial systems of the world comes into play here. Bail frees him on securing his promise to take trial at a future date and to undergo punishment if found guilty.
The concept of bail is traced from the right to liberty which is sanctified as one of the fundamental rights in the Constitution of India in Article 21(1) and its practice prescribed in Article22(2) as a working theorem and its corollaries in the provisions of Sections 436, 437 and 439 of the Code of Criminal Procedure, 1973 .
Law Commission of India in its 41st report recommended incorporating a provision for Anticipatory Bail. Section 438 of Criminal Procedure Code deals with the Anticipatory Bail. This provision allows a person to seek bail in anticipation of an arrest on accusation of non-bailable offence having been committed by him. It is a direction to release a person on bail, issued even before the person is arrested. Bail means temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
In other words release or secure the release of a prisoner on payment of bail. Such as cash, a bond, or property, pledged or given to a court by or on behalf of one accused of committing a crime, to obtain release from incarceration and to ensure the person’s future appearance in court when required during the criminal proceeding.
DEFINITION OF ANTICIPATORY BAIL
The Criminal Procedure Code, 1973, does not define bail, although the terms ‘bailable offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. as follows: “ Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence”. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.
In 2011, The Hon’ble apex court in Sanjay Chandra vs CBI (2012) 1 SCC 40) also opined that:
“The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”.
The Hon’ble Supreme Court, in Aasu vs. state of Rajastan (Criminal Appeal NO.511 of 2017 Dt.09-03-2017) issued a direction that Bail applications shall be disposed of normally within one week.
The public prosecutor will inquire from the police officer concerned that there is no FIR filed, the public prosecutor would be of the view that there were no grounds for granting anticipatory bail. The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail. The lawyer will make an oral prayer for seven days pre-arrest notice in case the police forms an intention to arrest. In all the above cases, judge will grant plea. An order will be passed accordingly.
This is called the ‘notice bail’ commonly. If the bail application is rejected in the Sessions Court then it would be applied in High Court. If the High Court also rejects the bail, then further application on Supreme Court is permitted. In cases when the FIR has been filed, the Investigating officer will send a notice of arrest. As soon as that notice is received, one should apply for anticipatory bail following the same procedure as stated above.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 prosecution in case any of the conditions imposed by the Court are being violated.
OPINION OF THE SUPREME COURT
Kanshi ram vs. State of Punjab ( INSC 230 (28 July 1961)
The petitioner is no longer entitled to statutory bail under Section 167(2) of the Code of Criminal Procedure.https://indiankanoon.org/doc/839149/ Petitioner has filed an application for grant of statutory bail under Section 167(2) due to default of the prosecution.
Shri Mehafuz Ali Khan vs. Cbi Police Station(2008 (3) KarLJ 117)
Illegal and therefore, the petitioner is entitled for the statutory bail under Section 167(2) of the Code of Criminal Procedure. Charge sheet, the petitioner was entitled for statutory bail notwithstanding that the charge sheet came to be filed subsequently.
Who is eligible to obtain anticipatory bail?
When any person has a reason to believe that there is a chance to get him arrested on false 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. Accused who has been declared as an absconder/proclaimed offender in terms of Section 82 of the Criminal Procedure Code and not cooperated with the investigation should not be given an anticipatory bail.
The Hon’ble APEX Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013) held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”.
The concept behind Anticipatory Bail:
- The provision got introduced in 1973 amendment.
- The Hon’ble Supreme court in Sushila Aggarwal v. state of NCT of Delhi (2020) case delivered a significant verdict that no time limit can be fixed while anticipatory bail is being granted.The application of anticipatory bail will only be entertained by the the Session and The High Court.3
- According to S.438(1) , the application for anticipatory bail can be made to the High Court or Court of Sessions. In normal circumstances, it is to be presumed that the court of session would be first approached for the grant of anticipatory bail unless an adequate case is made out where there is requirement of approaching the High Court directly without first coming before the Court of Session. The full bench of the Allahabad High Court has however taken the view that a bail application under s.438 may be moved in the High Court without the applicant taking recourse to the Court of Session for anticipatory bail is rejected