Anticipatory Bail

Anticipatory bail is a provision under the Code of Criminal Procedure (CrPC) that allows an accused person to seek bail in anticipation of his/her arrest. The provision is intended to protect the personal liberty of an accused person and is a safeguard against arbitrary arrest and detention. This blog will discuss the scope of anticipatory bail under Section 438 CrPC, the development of law on anticipatory bail in India, the meaning of anticipatory bail, the conditions that may be imposed by the court while granting anticipatory bail, the power vested in the courts for granting bail for non-bailable offences under Section 437 CrPC, cancellation of anticipatory bail under Section 439 CrPC, circumstances when anticipatory bail cannot be filed, how anticipatory bail is related to Article 21 of the Indian Constitution, important case laws, recent developments around anticipatory bail, and a conclusion.

Scope of anticipatory bail under Section 438 CrPC:

This section of CrPC provides for the grant of anticipatory bail to a person who apprehends arrest in a non-bailable offence. The section empowers the High Court and the Court of Session to grant anticipatory bail. The section is intended to protect an accused person's personal liberty and safeguard against arbitrary arrest and detention.

Development of law on anticipatory bail in India:

Anticipatory bail was introduced in the CrPC in 1973. The provision was included to safeguard the personal liberty of an accused person and to prevent the misuse of the power of arrest. Since its introduction, the provision has undergone several changes and has been interpreted by the courts through various judgments.

Meaning of anticipatory bail:

Anticipatory bail is a provision that allows an accused person to seek bail in anticipation of his/her arrest. The application for anticipatory bail can be filed before the registration of an FIR. The application can be filed by the person who apprehends arrest and can be filed before the High Court or the Court of Session. The court may impose certain conditions while granting anticipatory bail.

Conditions that may be imposed by the court while granting anticipatory bail:

The court may impose certain conditions while granting anticipatory bail. Some of the common conditions that are imposed include:

• The accused person must cooperate with the investigation;

• The accused person must not leave the country without the permission of the court;

• The accused person must not influence or tamper with the witnesses;

• The accused person must not indulge in any criminal activity;

Power used by the courts to grant bail for non-bailable offences under Section 437 CrPC:

This section of CrPC provides for the grant of bail in non-bailable offences. However, the court has the discretion to grant or refuse bail depending upon the facts and circumstances of the case. The court may grant bail if it is satisfied that there are reasonable grounds for believing that the accused person is not guilty of the offence and will cooperate with the investigation.

Is anticipatory bail related to Article 21 of the Indian Constitution:

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. The Supreme Court of India has interpreted this provision to include the right to be free from arbitrary arrest and detention. Anticipatory bail is a provision in the Code of Criminal Procedure (CrPC) which enables a person to seek bail in anticipation of his or her arrest. The provision is intended to protect the personal liberty of an accused person and is, therefore, closely related to Article 21.

Anticipatory bail can be sought by a person who anticipates his or her arrest in connection with a non-bailable offence. The provision empowers the High Court or the Court of Session to grant pre-arrest bail to an accused person subject to certain conditions. The provision's purpose is to safeguard against the arbitrary arrest and detention of an accused person.

The provision for anticipatory bail was added to the Code of Criminal Procedure in 1973. The provision has undergone several changes since then, and the courts have interpreted the provision through various judgments.

In the case of Gurbaksh Singh Sibbia v. State of Punjab (1980), the Supreme Court held that anticipatory bail is a valuable right that should not be lightly interfered with. The court also laid down the conditions that may be imposed while granting anticipatory bail. These conditions include requiring the accused person to cooperate with the investigation, appearing before the investigating officer as and when required, refraining from tampering with evidence, and not influencing or intimidating witnesses.

In Siddharam Satlingappa Mhetre v. State of Maharashtra (2011), the Supreme Court held that the court should consider several factors while granting anticipatory bail. These factors include the nature and gravity of the offence, the antecedents of the accused person, and the possibility of the accused person fleeing from justice.

In 2018, in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, the Supreme Court held that anticipatory bail should not be denied merely because the accused person is not cooperating with the investigation. The court also held that anticipatory bail should be granted if the accused person has a clean antecedent and there is no possibility of the accused person tampering with the evidence.

Conditions that may be imposed by the court while granting anticipatory bail:

While granting anticipatory bail, the court may impose certain conditions to ensure that the accused person does not misuse the provision. These conditions may include requiring the accused person to cooperate with the investigation, appearing before the investigating officer as and when required, refraining from tampering with evidence, and not influencing or intimidating witnesses. The court may also require the accused person to furnish a bail bond or surety.

Cancellation of anticipatory bail under Section 439 CrPC:

Under Section 439 of the CrPC, the court has the power to cancel anticipatory bail if the accused person violates any of the conditions imposed by the court while granting bail. The court may also cancel anticipatory bail if there are reasonable grounds to believe that the accused person has committed a non-bailable offence.

Anticipatory bail is a provision in the Code of Criminal Procedure (CrPC) that enables a person to seek bail in anticipation of his or her arrest in connection with a non-bailable offence. However, there are certain circumstances when anticipatory bail cannot be filed in India. These include:

· If the accused person has already been arrested: Anticipatory bail can only be filed in anticipation of an arrest. If the accused person has already been arrested, he or she cannot seek anticipatory bail.

· If the accused person is accused of committing a bailable offence: Anticipatory bail can only be sought in connection with a non-bailable offence. If the accused person is accused of committing a bailable offence, he or she can seek regular bail under Section 436 of the CrPC.

· If the accused person has been convicted by a court: Anticipatory bail can only be sought by an accused person who has not yet been convicted by a court. If the accused person has already been convicted, he or she can file an appeal against the conviction.

· If the offence is not covered under the CrPC: Anticipatory bail can only be sought in connection with offences that are covered under the CrPC. The accused person cannot seek anticipatory bail if the offence is not covered under the CrPC.

· If the accused person has already been granted anticipatory bail: Once anticipatory bail has been granted to an accused person, he or she cannot seek anticipatory bail again in connection with the same offence. However, the accused person can seek regular bail if he or she is arrested in connection with the offence.

It is important to note that the decision to grant or deny anticipatory bail is at the discretion of the court. The court may refuse to grant anticipatory bail if it believes that the accused person is likely to abscond or tamper with evidence.

Recent developments in the context of anticipatory bail:

In 2018, the Supreme Court held that anticipatory bail should not be denied merely because the accused person is not cooperating with the investigation. The court also held that anticipatory bail should be granted if the accused person has a clean antecedent and there is no possibility of the accused person tampering with the evidence.

Conclusion:

Anticipatory bail is a valuable right that protects the personal liberty of an accused person. The provision has undergone several changes and has been interpreted by the courts through various judgments. The courts have laid down conditions that may be imposed while granting anticipatory bail, and have also provided guidance on the factors that should be considered while granting anticipatory bail. Recent developments have emphasized that anticipatory bail should not be denied merely because the accused person is not cooperating with the investigation.

References

Code of Criminal Procedure, 1973

Constitution of India

Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565

Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694

Sushila Aggarwal and others v. State (NCT of Delhi) and another (2018) 2 SCC 801