INTRODUCTION:
The right to liberty is the fundamental right of each and every citizen of India. When any person is suspected to have committed any offence, the law is set to arrest that person and to bring him in front of trial court and punish him if found guilty. Bail sets the person free if the person promises to appear in front of the trial court at the prescribed future date and undergo punishment if he or she is found guilty.
The 41st report of the Law Commission of India included a provision for Anticipatory Bail in the Criminal Procedure Code, which is covered under Section 438. This provision enables a person to seek bail in anticipation of an arrest for a non-bailable offense they are accused of committing. Essentially, it is a pre-emptive order for releasing a person on bail before their arrest.
The purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present.
Meaning:
Anticipatory Bail is a legal remedy that is sought by an accused individual who has reasonable grounds to fear an arrest in connection with a cognizable offense. Bail is a temporary release from custody that an accused person may be entitled to until the case is resolved. If the allegations are severe in nature, it may be possible to avoid arrest entirely. However, in cases where an arrest is made, the accused may be released on bail as per the provisions of the Criminal Procedure Code. Anticipatory Bail provides relief to individuals accused of criminal offenses, particularly dowry-related cases, who anticipated being arrested. It therefore, enables the accused person to seek bail before an actual arrest is done.
SCOPE AND GROUNDS FOR ANTICIPATORY BAIL:
Anticipatory Bail is a legal provision that allows a person to seek bail in anticipation of arrest in connection with a non-bailable offense. It provides relief to the accused person by enabling them to obtain a pre-arrest bail order from the court of law. The grounds on which Anticipatory Bail may be granted are as follows:
1. The nature and gravity of the accusation: The nature and gravity of the accusation basically refers to the seriousness of the offense that the person is accused of committing. This factor helps the court to determine the level of risk posed by the accused to society and the likelihood of them fleeing. For instance, in cases of heinous crimes like murder or terrorism, the nature and gravity of the accusation may weigh heavily against granting bail.
2. The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence: The court will also take into account the background and past behavior of the person applying for bail, including whether they have been imprisoned in the past for a crime that is considered serious and can be investigated without a warrant.
3. The possibility of the applicant to flee from justice: The court will also consider whether there is a risk that the person applying for bail may try to escape and avoid facing the charges against them.
4. If the accusation against the applicant is made with the intention of causing harm or humiliation by having them arrested, the court can either reject the bail application immediately or issue an interim order for anticipatory bail. However, if the court does not take any action or rejects the application, the police can arrest the person without a warrant based on the accusation mentioned in the bail application.
5. Apprehension of Arrest: The first and foremost ground for seeking an Anticipatory Bail is the reasonable apprehension of arrest. The applicant has to establish that there are reasonable grounds to believe that they may be arrested in connection with a non-bailable offense and can create a problem for the accused and hamper his life.
6. Fear of being Falsely Implicated: The second ground for seeking Anticipatory Bail is the fear of being falsely implicated in a criminal case. The applicant has to demonstrate that there are reasonable grounds to believe that they may be falsely implicated in the alleged offense and that they are innocent.
7. Protection of Reputation: The third ground for seeking Anticipatory Bail is the protection of reputation. The applicant has to establish that there are reasonable grounds to believe that their reputation may be damaged if they are arrested in connection with the alleged offense.
8. Protection of Liberty: The fourth ground for seeking Anticipatory Bail is the protection of personal liberty. The applicant has to demonstrate that their personal liberty may be at risk if they are arrested, and thus they are seeking Anticipatory Bail to avoid the possibility of being detained in custody.
9. Need for Co-operation with Investigation: The last and final ground for seeking Anticipatory Bail is the need for co-operation with the investigation. The applicant has to establish that they are willing to cooperate with the investigation and are not likely to tamper with evidence. They should also assure the court that they will be available for further investigation whenever required.
CONCLUSION:
It is important to note that the granting of Anticipatory Bail is at the discretion of the court, and the court will consider the facts and circumstances of each case before making a decision. If the court is satisfied with the grounds presented by the applicant, they may grant Anticipatory Bail. However, if the court believes that the applicant may flee or tamper with evidence, or if there are other reasons to deny bail, it may refuse to grant Anticipatory Bail. In such cases, the applicant may have to seek regular bail after being arrested.
