Anticipatory Bail


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    • Recently, the Supreme Court has held that a superior court can set aside an anticipatory bail order if there is enough material to suggest that factors like the gravity of the offence and the role of the accused in the crime were not considered by the lower court.

    What are Bails?

    • Bail is a provisional release of the accused in a criminal case in which the court is yet to announce the judgment. 
    • The term ‘bail’ refers to the security that is deposited in order to secure the release of the accused.
    • Anticipatory Bail:
      • Section 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail.
        • In this bail, if any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section.
        • The provision empowers only the Sessions Court and High Court to grant anticipatory bail.
    • Rationale behind anticipatory 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.
      • The report said, “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.
    • Conditions while granting anticipatory bail:
      • As per Section 438(2), when the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions, as it may think fit, including: 
        • a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer,
        • a condition that the person shall make himself available for interrogation by a police officer as and when required
        • a condition that the person shall not leave India without the previous permission of the Court,
        • such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section
    • SC Observations:
      • 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).

    Image Courtesy: TOI


    • Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.
    • Parliament wished to provide primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.
    • Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being.

    Other Types of Bail in India

     Depending upon the sage of the criminal matter three types of bail are in India:

    • Regular Bail
    • Interim Bail
    • Anticipatory Bail (explained above)
      • Regular Bail
        • A regular bail is generally granted to a person who has been arrested or is in police custody. 
        • A bail application can be filed for the regular bail under sections 437 and 439 of CrPC.
      • Interim Bail
        • This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.

    Source: TH