“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 sensitized judicial process”.
– Justice V.R. Krishna Iyer
[in Gudikanti Narasimhulu case { (1978) 1 SCC 240 }]
The right to Life and personal liberty is one of the indispensable rights enshrined under the Constitution of India under Article 21. According to the established Criminal Justice System in India, a person accused of some offence is arrested and brought to trial before the courts of law and punished if found guilty. But in the process, the accused person, his right to personal liberty is deprived so giving bail liberates him so that he can prove his points in the trial in a better way. Depending on the nature of the offence, bail is granted either as a matter of right (in bailable offences) or at the discretion of the court (in non-bailable offences). The concept of anticipatory bail is a result of judicial interpretations as there was no room for this concept in the Code of Criminal Procedure, 1897. It was added by the 41st Report of the Law Commission of 1969. It is a pre-arrest bail, given in advance when an arrest is expected or suspected. Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CRPC) deals with the provision of anticipatory bail primarily in the cases of non-bailable offences. Pursuant to the provisions contained under this section, the power of granting anticipatory bail is vested in the High Court or the Sessions Court. If the anticipatory bail application is rejected by the High Court or the Sessions Court, then the police station in charge may arrest the person without a warrant for the accusation of offence(s) present in his anticipatory bail application.
Who Can Apply for Anticipatory Bail?
An Anticipatory Bail may be applied under Section 438 of the CRPC by any person who anticipates being arrested on the allegation of any offence reported against him. It is solely concerned with the arrest and has no relation to the filing of the First Information Report (F.I.R.), Chargesheet, or issuance of any arrest warrant. Even if the accused anticipates being arrested due to a non-bailable warrant being issued for his arrest as a result of the charge sheet filed against him, he may seek anticipatory bail.
Conditions for the Grant of Anticipatory Bail
After taking into account the aforementioned criteria, the court grants anticipatory bail to an individual:
• The allegations’ nature and seriousness.
• The applicant’s past history, including whether he has ever been imprisoned after being found guilty by a court of any cognizable offence.
• The applicant’s probable capacity to escape the law.
• If the charge has been manufactured in an effort to harm or humiliate the applicant by having him detained, either application is to be rejected right away or the applicant must be given a temporary order granting anticipatory bail.
In light of the facts of the individual case, the High Court or the Sessions Court may insert such criteria, like:
• That the individual make oneself available for questioning by a police officer as needed;
• That the individual refrain from offering any enticement, threat, or promise to anybody who is aware of the case’s facts in an effort to prevent him from reporting that information to the court or to any police officer;
• That the individual cannot depart from India without the court’s prior approval.
Important Case laws on Anticipatory Bail
Satendra Kumar Antil v. Central Bureau of Investigation [ (2022) 10 SCC 51]
In this case, the Apex Court division bench issued new arrest regulations to ensure strict adherence to Sections 41 and 41A of CRPC. These rules supplement the former ones that the Supreme Court had established in the case of Arnesh Kumar v. State of Bihar (2014). In the current instance, the Court has also emphasised the need for separate bail-related legislation and has given specific instructions in this respect.
This decision brings to light a number of long-standing issues, including the overcrowding of jails with undertrial prisoners who shouldn’t have been detained in the first place, the colonial mentality of investigating authorities, the disregard for rules like “bail is the rule while jail is the exception,” and more.
Sushila Aggarwal v. State of NCT of Delhi [(2020) 5 SCC 1]
The constitutional bench of the Apex Court rendered a key decision in this case, holding that anticipatory bail can be granted at any moment and can last all the way until the trial without being subject to any time restrictions. The Court further cited the Indian independence movement, noting that arbitrary detentions, indefinite detentions, and a lack of institutional protections were key factors in mobilising the populace to call for independence.
Bhadresh Bipinbhai Sheth v. State of Gujarat [(2016)1 SCC 152]
The lower court in this case rejected the plea for bail without providing any rationale, according to the facts. According to the division bench of the Apex Court, when all the requirements are met and anticipatory bail is denied without a reasonable justification from the court, it may be considered a violation of Article 21 of the Constitution of India, and the accused has a right of immediate appeal to the High Court.
State of Madhya Pradesh v. Pradeep Sharma [(2014) 2 SCC 171]
In this case, the Apex Court ruled that a person who had a warrant issued against them, who has been fleeing or hiding to prevent the execution of the warrant, and who had been designated as a proclaimed criminal under Section 82 of the Code is ineligible for the grant of anticipatory bail.
Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]
In this case, the Apex Court ruled that a compulsory notice to the accused to show up before the police officer under Section 41A of CRPC if he is tried for an offence with a punishment of imprisonment up to 7 years was necessary when determining an anticipatory bail application for offences under Section 498A of IPC, which is cruelty on women by her husband or in-laws.
M.C. Abraham and another VS. State of Maharashtra [(2003) 2 SCC 649]
In this case, the Apex Court ruled that denying anticipatory bail does not require the petitioner to be detained. In this instance, the HC ordered the arrest of the accused after his anticipatory bail was denied, based on the incorrect assumption that arrest must be made if anticipatory bail is denied.
Gurbaksh Singh Sibbia vs State of Punjab [(1980) 2 SCC 565]
In this case, the Apex Court held that “Section 438(1) shall be construed in the light of the Constitution’s Article 21 (protection of life and personal liberty).” An individual’s right to be granted anticipatory bail should not be time-bound. On a case-by-case basis, the Court might set the proper limitations. The court further stressed upon the Maneka Gandhi v. Union of India [(1978) 1 SCC 248] judgment and concluded that the process “established by law” for depriving an individual of his liberty must be fair, equitable, and reasonable for the purpose of meeting the requirements of Article 21.
Conclusion
Not all accused are convicts and mandatorily putting every accused in jail amounts to a violation of the human rights of any individual as it assassinates his reputation in society (which is an irreparable loss to anyone). Furthermore, it is also upon the courts that the provision of anticipatory bail must be exercised in exceptional circumstances where it feels that the applicant is falsely accused. Though the grant of anticipatory bail does not affect the trial before the regular court in any way. Moreover, to conclude, anticipatory bail is a very important provision to safeguard the plight of the accused in the criminal justice system of India.