Anticipatory Bail Procedure
What is Anticipatory Bail?
Anticipatory bail is a direction to release a person on bail, issued before the person is arrested. It is a preventive legal remedy to ensure that a person is not unnecessarily arrested when there is apprehension of arrest in a non-bailable offense.
Section 438 of the Criminal Procedure Code (CrPC), 1973 provides for anticipatory bail in India.
Procedure for Anticipatory Bail
Filing of Application: The person seeking anticipatory bail (applicant) files an application in the Sessions Court or High Court before arrest.
Court's Discretion: The court exercises discretion to grant or reject anticipatory bail based on facts, gravity of offense, antecedents, and possibility of fleeing or tampering with evidence.
Interim Bail: The court may grant interim bail until the application is finally decided.
Conditions: The court can impose reasonable conditions, such as appearing before the police or court when required, not leaving the jurisdiction, etc.
Duration: Anticipatory bail generally lasts until the investigation or trial is over, but the court can set the duration.
Important Case Laws on Anticipatory Bail
1. Gurbaksh Singh Sibbia v. State of Punjab (1980)
Facts:
The Supreme Court examined the scope of anticipatory bail and clarified when it should be granted.
Ruling:
The Court held that anticipatory bail is a statutory right under Section 438 CrPC.
It emphasized that bail is the rule and jail is the exception.
Anticipatory bail should be granted unless there is a likelihood of the accused fleeing, tampering with evidence, or committing a similar offense.
Significance:
This case set the foundation for anticipatory bail as a protective measure, ensuring liberty of a person before arrest.
2. Maneka Gandhi v. Union of India (1978)
Facts:
Though not directly on anticipatory bail, this case dealt with the right to personal liberty and due process under Article 21 of the Constitution.
Ruling:
The Supreme Court expanded the concept of personal liberty, emphasizing that no person shall be deprived of liberty except by procedure established by law, which must be fair, just, and reasonable.
Significance:
This judgment indirectly supports anticipatory bail as part of the liberty rights of individuals, safeguarding against arbitrary arrest.
3. Sushila Aggarwal v. State (NCT of Delhi) (2014)
Facts:
The Court considered anticipatory bail where the accused was charged under non-bailable offenses related to protests.
Ruling:
The Delhi High Court reiterated that anticipatory bail cannot be refused merely because the offense is serious or cognizable.
The court emphasized that the accused must show reasonable apprehension of arrest and the court must balance societal interest with the individual's right to liberty.
Significance:
Reaffirmed that anticipatory bail is available even in serious offenses unless the prosecution establishes compelling reasons against it.
4. Sanjay Chandra & Anr. v. Central Bureau of Investigation (2012)
Facts:
The case involved anticipatory bail for accused in the 2G spectrum case, a high-profile economic offense.
Ruling:
The Supreme Court ruled that in serious offenses involving large-scale corruption, the right to anticipatory bail is not absolute.
It is subject to stricter scrutiny, considering factors like the nature of the offense, role of the accused, and potential harm to society.
Significance:
The judgment limited anticipatory bail in cases of serious economic offenses, highlighting a balance between individual liberty and public interest.
5. Arnesh Kumar v. State of Bihar (2014)
Facts:
This case discussed anticipatory bail in the context of arrests under Section 498A IPC (dowry harassment).
Ruling:
The Supreme Court held that arrest is not mandatory in all cases under non-bailable offenses.
Police must follow guidelines before arresting, and anticipatory bail can be granted to avoid unnecessary arrests.
Courts must ensure that anticipatory bail is not refused mechanically.
Significance:
It emphasized protecting individuals from arbitrary arrest and misuse of laws through anticipatory bail.
Summary
| Case | Key Principle |
|---|---|
| Gurbaksh Singh Sibbia (1980) | Anticipatory bail is a statutory right, bail is the rule, jail is exception |
| Maneka Gandhi (1978) | Expanded right to personal liberty under Article 21 |
| Sushila Aggarwal (2014) | Anticipatory bail available even in serious offenses, court balances liberty and societal interest |
| Sanjay Chandra (2012) | Stricter scrutiny on anticipatory bail in serious economic offenses |
| Arnesh Kumar (2014) | Arrest not mandatory; anticipatory bail avoids arbitrary arrests |
RELATED Blog
0 comments