Anticipatory bail is a boon and a bane looking at the news events in UP and other parts of the country and at the same time ensure dignity of human rights under the law. Thus, a reset of its applicability and implementation is a need of the hour.
What is it?
Section 438 of the Criminal Procedure Code (CrPC) provides for the provision of anticipatory bail.
However, the term “anticipatory bail” is nowhere defined in the CrPC.
This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
The purpose of the grant of anticipatory bail is to protect the life and liberty of the appellant and to protect him from unnecessary trauma and defamation of frivolous and false charges and arrest.
Anticipatory bail became part of the new CrPC in 1973, after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.
As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.
The section mandates that all pre-arrest bail would have at least three conditions attached to it : the accused should cooperate in investigation, not tamper with evidence or influence the witness, and not leave the country without prior permission of the court.
According to Section 438(1), the High Court and the Court of Session have concurrent powers to consider anticipatory bail applications.
Though there is no specific mention in Section 438, it is normally presumed that the Court of Session would be first approached, unless an adequate case is made out for straightaway approaching the High Court directly.
When the application of anticipatory bail is rejected by the Court of Session, then a fresh application can be made in the High Court.
The Court within whose jurisdiction the arrest has been apprehended has the jurisdiction to admit the application of anticipatory bail.
The grant of anticipatory bail can be allowed even in the absence of the applicant.
It is only if the public prosecutor applies to the court for the appearance of the applicant it becomes mandatory for him to appear.
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