ANTICIPATORY BAIL: Bail Outside Of Jail

Anticipatory bail is also called Pre-Arrest Bail which is granted to a person, even before an arrest. Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he/she may apply for anticipatory bail in the high court or in the court of session under section 438 of the Code of Criminal Procedure, 1973. There is no need for FIR to be lodged against a person to apply for anticipatory bail. A person has the right to apply for anticipatory bail even after lodging an FIR but only before the arrest is made.

How is anticipatory bail related to article 21 of the constitution of India?

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It is also held by the Apex Court that the procedure established by law must be fair, just and reasonable for depriving a person of his liberty.[1] It safeguards an individual’s freedom and liberty against unjustified detention and arrest, regardless of whether the person is an “accused,” thus upholding the principle of innocence until proven guilty. Pre-Arrest Bail is a statutory right. Rights that are legislated, ordained, or bestowed by legislation are known as statutory rights. Anticipatory bail is the obligation to uphold the fundamental right to personal liberty in the event of false charges while adhering to the legal concept of “innocent until proven guilty”. The concept of anticipatory bail is one of the most significant defences to personal liberty. 

While considering an application for a grant of Pre-Arrest Bail the court has to consider: –

• Nature of the offence, or

• The role of the person, or

• The likelihood of his influencing the course of the investigation or tampering with evidence, or

• Likelihood to flee from justice such as leaving the country, or

• Previous conduct of the person.

 

The High Court or the Court of Sessions, while granting Pre-Arrest bail may impose conditions as mentioned u/s 438(2)

• The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.

•  The applicant should not leave the country without the previous permission of the court.

• The applicant should submit a local residential address, native address and contact number to the concerned police station.

• The applicant should not make any inducement, threat, promise etc. to any person acquainted with the facts of the case.

Whether anticipatory bail can be granted for a limited period?

No, anticipatory bail can’t be set for a limited period.[2] There is nothing in Cr.P.C. that mentions the grant of anticipatory bail is for a limited period. It is also held by the Apex Court that once anticipatory bail is granted to a person then it can not be granted for a limited period.

Anticipatory bail was granted to the accused only till the framing of the charge. It is the impugned order which would reflect the mind of the judge as to what were the peculiar facts and circumstances which warranted limiting the anticipatory bail for a particular period. The perusal of the entire order would reveal that there is no discussion at all concerning the same – Part of the order which restricts the anticipatory bail up to framing of charge is quashed and set aside.[3]

Where to apply for anticipatory bail?

• Anticipatory bail is to be filed in the Court of Session, in case bail was rejected by then,

• A petition is to be filed before the Hon’ble High Court, in case bail is rejected by High Court,

• Then against the rejection order of the Hon’ble High Court, a Special Leave Petition under Article 136 of the Constitution of India is to be filed in the Supreme Court.

Anticipatory bail in Non-Bailable Offence:-

• If the accused is a woman or child,

• If there is a lack of adequate evidence,

• If there is a delay in registering the FIR by the complainant,

• If the accused is physically or gravely sick,

• If there is corroboration about personal animosity between the accused and the complainant.

Whether Pre-Arrest bail can be cancelled?

Yes, anticipatory bail can be cancelled,

• If the accused did not comply with the conditions imposed by the court,

• If did not join the investigation,

• If try to fly from justice,

• and many more reasons

Anticipatory bail can not be granted if a person is declared a proclaimed offender unless he/she surrendered before the police officials or before the court of the magistrate. Over the years, Anticipatory Bail has acted as a guard to an innocent person, whom a false and fabricated case was filed.

High court of Jharkhand asks husband to pay wife 10 lakhs for anticipatory bail in a dowry harassment case, the Supreme Court of India set aside the condition as unreasonable.[4]

There are some cases in which the Hon’ble Court rejected the bail on the basis of the severity of the offence, the gravity of the offence, and how many cases are pending against the person. But the Supreme Court in the case of PRABHAKAR TEWARI V. STATE OF U.P. & ANR.  (2020) held that the offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for the refusal of prayer for bail.[5]

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[1] Maneka Gandhi v. UOI, 1978, 1 SCC 248

[2] Monirul Islam vs. the state of west Bengal 2021

[3] Tarun Aggarwal vs Union of India | 2022 SC 885

[4] Ravikant Srivastav @ Ravi kant Srivastav v. state of Jharkhand, 2022

[5] PRABHAKAR TEWARI V. STATE OF U.P. & ANR.  (2020)