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Anticipatory Bail
Anticipatory Bail
SUBMITTED TO SUBMITTED BY
PROF. P.K. SINGH NEELESH SAHU
FACULTY OF LAW,BHU 20225LLB226
L.L.B (HONS)
SECTION B
SEMESTER II
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ACKNOWLEDGEMENT
During the course of writing this assignment ‘ANTICIPATORY BAIL’ I have
received help, encouragement and assistance from my professors, books, friend
and some websites on internet. I am thankful to all of them.
NEELESH SAHU
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Table of Contents:-
A. Introduction 4
B. History 5
C. Definition 6
D. Jurisdiction 6
E. Discretion of Court 7
F. Applicability 8
G. Offences and Anticipatory Bail 9
H. Case Laws 10
I. Conclusion 14
J. Bibliography 15
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Anticipatory Bail
Introduction
The offences that are committed by the criminals leads to the punishment
of being arrested or imprisoned. The time period of imprisonment differs from
case to case which can last for lifetime and can also turn into death penalty. The
remedy to imprisonment is bail. "Bail refers to release of a person from the
custody or imprisonment either before the end of time period of punishment or
at the end of it." The concept of bail is stated under Code of Criminal
procedure. Sections 436- 439 explain bail. The bail can be granted by magistrate
and police.
Regular Bail: It is a direction given by the Court (any Court within the
country) to release a person who is already under arrest and kept in police
custody. For such Bail, a person can file an application under Section 437 and
439 of the CrPC.
Interim Bail: Bail granted for a temporary and short period by the Court
till the application seeking Anticipatory Bail or Regular Bail is pending before a
Court.
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History-
Historically, the Code of Criminal Procedure, 1898 (old Code) did not
contain specific provision corresponding to Section 438 of the present Code of
1973. Under the old Code, there was a sharp difference of opinion amongst
various High Courts on the question whether a Court had inherent power to
make an order of bail in anticipation of arrest. The preponderance of view,
however, was that it did not have such power [2].
To get anticipatory bail the person seeking it, must approach the Court of
Sessions or the Supreme Court and citing section 438 of the Criminal Procedure
Code also as giving proper reason, apply for it. If the court, supported variety of
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conditions and therefore the nature of the case, sees merit within the petition the
bail is granted. Hence if and when the person is arrested, he/she are going to be
immediately released on the idea of the anticipatory bail.
As most things have a dark side so do this provision of the code. The
object behind enacting this law was to prevent the innocent from getting trapped
but with time the picture has changed and now persons accused of heinous
offences and even habitual offenders are invoking it repeatedly, which was not
the intent of the relief sought to be given by this section.
Definition
In the case of Balchand Jain vs. State of M.P [3], it was stated that,
anticipatory bail is a misnomer as it is not bail presently granted in anticipation
of arrest. When the court grants anticipatory bail, what it does is to make an
order that in the event of arrest a person shall be released on bail. Manifestly
there is no question of release on bail unless a person is arrested and, therefore,
it is only upon arrest that an order granting ‘anticipatory bail’ becomes
operational.
Jurisdiction
Session then a fresh application can be made in High Court, there is no bar in
making an application to the higher court.
The Court within whose jurisdiction the arrest has been apprehended has
the jurisdiction to admit the application of anticipatory bail. The opinions
expressed by the Supreme Court in some cases seem to favor the view that the
question of granting anticipatory bail to any person who is allegedly concerned
with the offence must for all practical purposes be considered by the courts
within whose territorial jurisdiction such offence could have been
perpetrated.[4]
The word "may, if it thinks fit" used in Section 438(1) and the absence of
any specific restraints on the exercise of the power to grant "anticipatory bail"
clearly indicates that the legislature intended to confer and has in fact conferred
very wide discretion on the High Court and the Court of Session to grant
anticipatory bail.
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Applicability
3. The section is applicable to all bailable and non- bailable offences. [6]'
This case regards with grant for arrest bail in respect of non bail able
warrants issued against the petitioners in this case. They are filing the petition
for grant of pre-arrest bail as the learned Chief Judicial Magistrate, Chandigarh
has issued.
The court may direct the following persons may be released on bail,
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Refusal to bail
Anticipatory bail became part of the new CrPC in 1973 (when the latter
replaced the older Code of 1898), after the 41st Law Commission Report of
1969 recommended the inclusion of the provision. In the 1980 Gurbaksh Singh
Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then
Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the
light of Article 21 of the Constitution (protection of life and personal liberty).
Bailable Offence: Sec. 436 of the CrPC lays down provision for granting
Bail to a person accused of any bailable offence under the IPC.
Bailable offences are offences or crimes that are not very serious in
nature and include: unlawful assembly (Sec. 144 of CrPC), payment of bribe
during elections, fabrication of false evidence, participation in riots, furnishing
false information, causing death by negligence (Sec. 304A), stalking, criminal
defamation, etc.
Non-bailable Offence: Sec. 437 of the CrPC lays down the power of court
to grant Bail to a person accused of committing a non-bailable offence under the
IPC.
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counterfeiting of Indian currency, murder (Sec. 302), dowry death (Sec. 304B),
abetment of suicide, trafficking of a person, rape (Sec. 376), etc.
Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory
Bail. They imply that a Court which has the power to grant anticipatory Bail is
also empowered to cancel the Bail or recall the order related to Bail upon
appropriate consideration of facts.
A High Court or Court of Session may direct that any person who has
been released on Bail by it- be arrested, and brought under custody after filing
of an application by the complainant or the prosecution.
However, a Court does not have the power to cancel the Bail granted by
the police officer.
Case Laws
In the case of Amiya Kumar v. State of West Bengal [7], it was held
that section 438 of the code empowers both high court and session’s court to
grant the anticipatory bail. Both the courts have the competency to grant this
bail. If the Sessions court rejects the petition filed by the applicant for the
anticipatory bail, he can’t file the petition for the same in the high court.
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INX media case 2020 The Court, however, noticed that ordinarily, arrest
is a part of the process of the investigation intended to secure several purposes.
There may be circumstances in which the accused may provide information
leading to discovery of material facts and relevant information. Grant of
anticipatory bail may hamper the investigation.
Due to such divergent views, the Court had to decide on two questions in
the recent Sushila Aggarwal (2020) case-
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If any Court wants to limit the Bail, it can attach special features or
circumstances warranting the same.
according to the peculiar facts and circumstances of the case. In case, the State
considers the following suggestions in proper perspective then perhaps it may
not be necessary to curtail the personal liberty of the accused in a routine
manner:
Direct the accused to join investigation and only when the accused
does not cooperate with the investigating agency, then only the
accused be arrested.
Seize either the passport or such other related documents, such as,
the title deeds of properties or the Fixed Deposit Receipts/Share
Certificates of the accused.
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legislative mandate which the Courts are bound to respect and honor.
Anticipatory bail is a device to secure the individual’s liberty; it is neither a
passport to the commission of crimes nor a shield against any and all kinds of
accusation, likely or unlikely.
Conclusion
The terms bail and anticipatory bail are correlated but different from each
other. The bail can be granted at different stages but, anticipatory can be asked
for before the complaint is filed. Both have different condition imposed along
with them. Anticipatory bail is a kind of bail provided under CrPC but, has a
different applicability and conditions to be filed.
But since the state legislature have been given requisite powers to amend
the provisions of the code, subject to the other provisions of the constitution, so
states likes Maharashtra, Orissa, West Bengal have a little different anticipatory
bail provisions, where as Uttar Pradesh does has even omitted provision of
Section 438, and so there is nothing like Anticipatory bail in state of Uttar
Pradesh. As most things have a dark side so do this provision of the code. The
idea behind enacting this law was to prevent the innocent from getting trapped
but with time the picture has changed and know persons accused of heinous
offences are invoking it repeatedly, which was not the intent of the relief giving
provision, which is a big concern. Over the years, anticipatory Bail has acted as
the protection (granted under Sec. 438 of CrPC) to safeguard a person against
whom false accusation or charges have been made. But law and guideline
needed to be reviewed to make it more effective
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Bibliography
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