In the realm of criminal law, an arrest can be a distressing and life-altering event for individuals accused of an offence, even before they are proven guilty. To safeguard the rights and liberties of individuals, the legal system provides for anticipatory bail, a crucial provision under Section 438 of the Code of Criminal Procedure, 1973. Anticipatory bail empowers individuals to seek protection from arrest and secure their personal liberty in anticipation of being falsely implicated or harassed by the police. This provision serves as a crucial safeguard, ensuring that the principle of "innocent until proven guilty" remains upheld in our legal framework.
Meaning of Anticipatory Bail:
Anticipatory bail can be best described as a pre-arrest legal remedy that enables an individual to approach the court seeking protection against an imminent arrest. Section 438 of the Code of Criminal Procedure, 1973, governs the provisions related to anticipatory bail in India. It is important to note that this provision is discretionary in nature and grants the courts the authority to grant anticipatory bail based on the facts and circumstances of each case.
The Objective of Anticipatory Bail:
The primary objective of anticipatory bail is to protect individuals from arbitrary or unwarranted arrest, ensuring that they are not subjected to custodial interrogation and the accompanying humiliation, mental agony, and social stigma that often accompany an arrest. By allowing individuals to seek anticipatory bail, the legal system acknowledges the need to balance the interests of justice and the personal liberty of the accused. It recognises that an individual should not be automatically subjected to the harsh consequences of arrest unless there is reasonable and credible evidence against them. Anticipatory bail acts as a safeguard against the misuse of the legal process by unscrupulous elements, providing relief to individuals who genuinely fear the possibility of being falsely implicated in criminal cases. It empowers them to approach the court before an arrest is made and seek protection against potential harassment or detention. However, it is essential to understand the intricacies of Section 438 and the various factors that courts consider while granting or denying anticipatory bail.
Factors Taken Into Consideration by Courts While Granting Anticipatory Bail:
According to Section 438, the following factors are considered while granting anticipatory bail -
Nature and seriousness of the accusation: The court evaluates the nature and gravity of the accusation as perceived by the applicant. This involves assessing the severity of the alleged offence and its potential impact on society.
Applicant's antecedents: The court examines the background of the applicant, including whether they have a previous criminal record or have served imprisonment for a cognizable offence. This helps in determining the applicant's credibility and their likelihood of committing further offences.
Malicious intent or reputation damage: The court considers whether the accusation against the applicant appears to be motivated by a desire to humiliate or tarnish their reputation. This factor helps in distinguishing cases where the purpose of the arrest is to unjustly defame the applicant.
Risk of absconding: The court assesses the possibility of the applicant fleeing from justice if granted anticipatory bail. This involves evaluating factors such as the applicant's ties to the community, employment stability, financial resources, and any past attempts to evade the legal process.
Conditions Imposed by Courts While Granting Anticipatory Bail:
According to Section 438, the following conditions are imposed while granting anticipatory bail -
Cooperation with police: The applicant is required to make themselves available for interrogation by a police officer whenever requested. This ensures their cooperation with the investigation process.
Non-interference with witnesses: The applicant must refrain from directly or indirectly attempting to influence, intimidate, or manipulate any individual who is aware of the facts related to the accusation. This condition prevents the applicant from obstructing the disclosure of relevant information to the court or the police.
Travel restrictions: The applicant is prohibited from leaving the country without prior permission from the court. This restriction ensures that they remain within the jurisdiction and can be easily contacted if required for further legal proceedings.
Additional conditions: The court may impose other conditions as deemed necessary under subsection (3) of section 437 of the Code of Criminal Procedure.
Frequently Asked Questions (FAQs):
1. What is the most basic requirement for the grant of anticipatory bail?
The most basic requirement that must be fulfilled before anticipatory bail can be granted is the fear or anticipation of the person being arrested.
2. Can fear of arrest be the only ground for the grant of anticipatory bail?
A mere fear is not a sufficient ground. A blanket order that the “applicant shall be released on bail whenever arrested for whichever offence whatsoever,” cannot be passed. The power is extraordinary. It is to be exercised only in exceptional cases.
Adri Dharam Das v State of WB, [(2005) 4 SCC 303].
3. Is there any strait-jacket formula for the grant of anticipatory bail?
Each case has to be considered on its merits for the grant of such bail or refusal. No straight-jacket formula of universal application can be laid down.
Pravin Bhai Kashirambhai Patel v State of Gujarat, [(2010) 7 SCC 598].
4. Is anticipatory bail granted for a limited period of time?
Yes, anticipatory bail has to be always granted for a limited period.
An order granting blanket protection for an unlimited period was held clearly to be untenable and liable to be set aside in Sunita Devi v State of Bihar, [(2005) 1 SCC 608].
5. Can the person apprehending the arrest be asked to meet irrelevant or harsh conditions while granting anticipatory bail?
In Sohan Lal Suneja v State of Punjab, [(2006) 12 SCC 433], there was an FIR against the appellants and others for their alleged involvement in the misappropriation of stock. The bail order imposed the condition of making a huge deposit without reason. The order was held to be not valid.
6. Is the State given an opportunity to be heard while granting anticipatory bail to the accused?
The short answer is yes. In State of Assam v RK Krishna Kumar, (AIR 1998 SC 144), where anticipatory bail was granted without affording an opportunity of hearing to the State authorities, the order was held liable to be set aside.
7. Can absconders get anticipatory bail?
The Supreme Court has held in State of Madhya Pradesh v Pradeep Sharma, [(2014) 2 SCC 171] that persons who have been declared absconders/ proclaimed offenders are not entitled to anticipatory bail.
8. Is FIR against a person mandatory to make an application for anticipatory bail?
No, it has been held in many cases by the courts across the country that registration of FIR is not essential for the grant of anticipatory bail to a person.
9. When does the anticipatory bail order become operative?
The order becomes operative only when the person in question is arrested.
Savitri Agarwal v State of Maharashtra, [(2009) 8 SCC 325]
10. On what grounds is the judicial discretion to grant anticipatory bail exercised?
The Supreme Court of India in Siddharam Satlingappa Mhetre v State of Maharashtra, [(2011) 1 SCC 694] enumerated the following ten parameters for the courts to consider while dealing with an application for anticipatory bail:
(i)The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made;
(ii)The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii)The possibility of the applicant to flee from justice;
(iv)The possibility of the accused’s likelihood to repeat similar or other offences;
(v)Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi)Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii)The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, 1860 the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
(viii)While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix)The Court is to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x)Frivolity in prosecution should always be considered and it is only the element of genuineness that shall be considered in the matter of grant of bail and in the event of there being some doubt as the genuineness of the prosecution in the normal course of events, the accused is entitled to an order of bail.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. Consult a qualified legal professional for advice specific to your situation.
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