Anticipatory Bail: A Directions for Pre-Arrest Release | Assignments Law

ANTICIPATORY BAIL: AN EXTRA ORDINARY REMEDY

-SHASHI RAJ

ABSTRACT:

Anticipatory Bail is a direction in which the person is released on bail even before getting

arrested. In other words, it is convenient mode of conveying that it is impossible to apply for

bail in anticipation of arrest. When the anticipatory bail is granted by the court, it makes an

order that while he is in the event of the arrest, he will be released on bail. Therefore, it

becomes operative only on arrest. There is a difference between an ordinary bail and an

anticipatory bail. Ordinary bail is granted after the person is arrested which means realizing

from the custody of police whereas anticipatory bail is granted in anticipation of arrest

which means it can be granted at the moment of arrest. Section 438 which is also called

anticipatory bail cannot be invoked after the arrest of the person. If they are arrested then

they can seek their remedy under sec 437 of or 439 of the code for the order of the ordinary

bail. (supreme court in June 2013).It can be exercised by the court of session and high

courts.

Necessity which led to the formation of Anticipatory bail- Under the old code there was no

provision for granting Anticipatory bail. It was observed by the Law Commission in 41st

report:

“the necessity for granting anticipatory bail arises mainly because sometimes influential persons

try to implicate their rivals in false cause for the purpose of this gracing them or for other

purposes by getting them detained in jail for some days. In recent times, with the accentuation of

political rivalry, this tendency is showing signs of steady increase.

Apart from false cases, where there are reasonable grounds for holding that a person accused of

an offence is not likely, to abscond, or otherwise misuse his liberty while on bail, there seems no

justification to require him first to submit to custody, remain in prison for some days and then

apply for bail.”i

Thus, the logical reason behind inclusion of anticipatory bail in the code was that,

individual’s liberty must not be put in jeopardy on the instance of unscrupulous an

irresponsible person.

It is necessary to protect the person from unnecessary humiliation and the faith which people

are having on judicial system therefore, the court has to balance by granting anticipatory bail

An Anticipatory bail order which is issued by the court any case under sec.438 secures the

liberty of the person who is to be arrested. People should not think that this gives the passport

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ANTICIPATORY BAIL: AN EXTRA ORDINARY REMEDY -SHASHI RAJ ABSTRACT: Anticipatory Bail is a direction in which the person is released on bail even before getting arrested. In other words, it is convenient mode of conveying that it is impossible to apply for bail in anticipation of arrest. When the anticipatory bail is granted by the court, it makes an order that while he is in the event of the arrest, he will be released on bail. Therefore, it becomes operative only on arrest. There is a difference between an ordinary bail and an anticipatory bail. Ordinary bail is granted after the person is arrested which means realizing from the custody of police whereas anticipatory bail is granted in anticipation of arrest which means it can be granted at the moment of arrest. Section 438 which is also called anticipatory bail cannot be invoked after the arrest of the person. If they are arrested then they can seek their remedy under sec 437 of or 439 of the code for the order of the ordinary bail. (supreme court in June 2013).It can be exercised by the court of session and high courts. Necessity which led to the formation of Anticipatory bail- Under the old code there was no provision for granting Anticipatory bail. It was observed by the Law Commission in 41st report: “the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cause for the purpose of this gracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely, to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”i Thus, the logical reason behind inclusion of anticipatory bail in the code was that, individual’s liberty must not be put in jeopardy on the instance of unscrupulous an irresponsible person. It is necessary to protect the person from unnecessary humiliation and the faith which people are having on judicial system therefore, the court has to balance by granting anticipatory bail An Anticipatory bail order which is issued by the court any case under sec.438 secures the liberty of the person who is to be arrested. People should not think that this gives the passport

to them for committing crime or this shield them of all kinds of accusations either likely or unlikely.ii The objective behind the making of this section is that any individual who is arrested should not be humiliated by the wrongful arrest due to any personal grudge towards other person. It may happen that the person files the case of any non bailable offence against the other person just to take revenge the this can lead to harassment of that person against whom the case has been filed. Therefore, this provision of Anticipatory bail has been made so that no person should be harassed or in order to satisfy the grudge of the complainantiii. An interim order retraining arrest, if passed while dealing with an application under section 438 will amount to interference in the investigation which cannot, at any rate, be done under sec 438.iv Section 438(1) gives the directions so as to grant anticipatory Bail to the person, this subsection was substituted by 2005 Amendment Act. In this section the arrested person who has been accused for committing any non bailable offence can go for the grant of anticipatory bail either to the high court or the court of session. The court has to take following things into the account before granting this bail these are: (i)The court has to look at the nature and gravity of the accusation (ii) the court has to look that before this event, had he previously undergone any such imprisonment or conviction in any cognizable offence. (iii) the court has to look at the possibility of fleeing of the applicant in securing justice. (iv) if it is found that the accusation was made by the view of humiliating the applicate the court must reject the application immediately, or else issue an interim order to grant the anticipatory bail. This amendment has been criticized on the grounds that this amendment defeats the very purpose of the provision because it said that it is on the discretion of the court to determine whether he would be granted the anticipatory bail or not, the court will further give notice to the public prosecutor and then reexamination of the question of bail will take place by listening to the contentions of both sides. It was criticized because this provision was made to protect people from arrest due to false charges The amendment will allow the public prosecutor to asked for the accused to be physically present in the court when the application is pending, thus making it easy for the police to intercept and arrest the accused before he reaches court. If the court reject the application then it will become easy for the police to arrest him then and there and this will restrict the accused to appeal further. This amendment thus provides an unexpected opportunity and embarrassment to the advocates to bring the

Anticipatory bail could not be claimed as a master of right (state of M.P. v. KR.K Balothia AIR 1995 SC 1198). It is not available in case of “ bailable offence”.

i 41 st (^) law commisiion report ii (^) Parvinderjit singh v. state (UT Chandigarh) AIR 2009 SC 502 iii (^) HDFC Bank Ltd. v. J.J. Mannan alias J.M.. John Paul AIR 2010, SC 618 iv (^) Adri Dharan Das v. State of WB (2005) 4 SCC 303

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