Author: Sanskriti Meena, a Student of Rajiv Gandhi National University of Law, Punjab
ABSTRACT:
Anticipatory bail is a legal provision that protects rights of individual against wrongful arrest. The provision of anticipatory bail was not included in The Code of Criminal Procedure initially it evolved through judicial interpretations and was formally introduced under section 438 of the Code of Criminal Procedure in 1973. Anticipatory bail is not granted for serious offences, for absconder and for offences which are punishable with death penalty or life imprisonment. It is important to maintain balance between rights of individual and interest of society ensuring that investigation process does not get disturbed. Important judgements like Gurbaksh Singh Sibbia v State of Punjab and Savitri Agrawal v State of Maharashtra helped to shape application of anticipatory bail, courts must strike balance between rights of individual and anticipatory bail in a way that it does not hamper effective investigation.
INTRODUCTION:
Bail means a temporary release of an accused person where money or property is given as surety and person will return to custody after a particular time-period. The term “bail” is not defined anywhere in the Code of Criminal Procedure (CrPC) but ‘bailable’ and ‘non-bailable’ offences are defined under CrPC. Anticipatory bail is the type of pre-arrest bail granted to a person who is in anticipation of being arrested for a non-bailable offence and it can be issued only by high courts and session courts. The provision of anticipatory bail was not originally included in The Code of Criminal Procedure, anticipatory bail has evolved because of judicial interpretations of section 496, 497 and 498 of CrPC. The aim of introducing anticipatory bail is to protect the right to life and liberty of the accused person who is falsely accused of an offence it is a preventive measure to safeguard fundamental rights of an individual and protect him from being subject to wrongful arrest and detention. The law commission in its 41st report suggested introducing the provision of anticipatory bail because sometimes powerful and influential people try to implicate their rivals for false cases for the purpose of defaming them. The concept of anticipatory bail was introduced in the Code of Criminal Procedure 1973 under section 438. Anticipatory bail keeps the individual from being detained when he receives the complaint he expected, but it does not stop the police from looking into the case. Of course, if a thorough investigation is carried out and there are enough reasons to believe he is guilty, he might be detained later.
EVOLUTION OF ANTICIPTORY BAIL IN INDIA:
Prior to 1973 there was no provision pertaining to anticipatory bail in India, court did not have the power to grant bail to a person who was never arrested or is in anticipation of arrest. In the case of Jabar Mal v. State court observed that neither high courts nor any sub-ordinate courts have power to grant pre-arrest bail to a person who is in anticipation of arrest. In case of King Emperor v. Khwaja Nazir Ahmad court said that granting pre-arrest bails will amount to interfering in the territory of investigating authorities.
41st Law Commission report in the year 1969 recommended that high courts and session courts should be given authority to grant pre-arrest or anticipatory bail because there was a probability that powerful individuals may attempt to indict their rivals in false cases to disgrace them or force them into jail for short period. The report also stressed on the point that there is no need to keep a person in custody if there is enough reason to belief that the accused will not misuse the liberty granted but such bail should be granted in exceptional cases only. In line with the recommendations of 41st Law Commission report the 48the Law Commission report observed that court shall grant such relief only if it feels that it is necessary in the ‘interest of justice’. With some modifications anticipatory bail was added as section 438 in The Code of Criminal Procedure, 1972.
CONDITIONS WHEN ANTICIPATORY BAIL CANNOT BE GRANTED:
Anticipatory bail is not granted in the following conditions:
- When a person is accused of serious economic offences he is not entitled to anticipatory bail;
- If the accused is absconding or is declared as proclaimed offender, he is not entitled to anticipatory bail;
- The provision of anticipatory bail cannot be exercised with regards to offences which are punishable with imprisonment for life-or-death penalty;
- Anticipatory bail cannot be granted if larger interest of society is at stake;
- Anticipatory bail will not be granted if court has already rejected the grant of anticipatory bail unless there is some change in circumstances.
RIGHT TO LIFE AND ANTICIPATORY BAIL:
Right to life is a fundamental right of the citizens granted by the Constitution of India. Anticipatory bail has its roots in right to life and liberty i.e., article 21 of the Indian Constitution. In the case of Siddharam Satlingappa Mhetre v State of Maharashtra court held that bail has vital interest of society and granting or rejecting bail must show the balance between personal liberty and society. Right to life also includes right to live with dignity and it is a basic human right, if any person is accused of commission of any offence it will lead to stigmatization and reputational damage, even if the respondent is eventually found innocent. The stigmatization affects the individual’s life and his family’s life in all ways thus court has to consider all aspect legal and social while granting anticipatory bail. The expression ‘every coin has two faces’ is best illustrated using anticipatory bail. On one hand anticipatory holds a vital role in safeguarding the right to life and personal liberty of an individual and protect the accused from wrongful detention on the other hand it may enable accused to evade justice and interfere with legal process. This duality give rise to the need of having a balance between right to life and anticipatory bail. Anticipatory bail should be granted only in exceptional cases it is not a rule, but an exception mere fear cannot be a reason to grant anticipatory bail. In the case of Gurbaksh Singh Sibbia v State of Punjab supreme court held that court must be satisfied that the accused have enough reason to believe that he is most likely to be arrested for a non-bailable offence. Factors like gravity and nature of offence, probability of interrupting in the procedure, probability of absconding etc must be considered while granting or rejecting anticipatory bail. If the court rejects the grant of anticipatory bail to protect the interest of society or for the sake of justice, it does not violate right to life on an individual and anticipatory bail is not granted just because of right of an individual. Right to life and liberty is not an absolute right it can be taken away by due process of law in the interest of justice and article 21 of the Constitution cannot allow irrational process. While granting anticipatory bail court should also consider the relationship between petitioner and respondent. However, granting anticipatory bail does not mean that court has granted a licence to commit crime to the accused it is just a provision to safeguard the rights of an individual against false accusations. The court must strike balance between rights of individual and society and no right is absolute as reasonable restrictions can be implied on them.
ANTICIPATORY BAIL AS A HINDERENCE TO EFFECTIVE INVESTIGATION:
Anticipatory bail is a legal instrument to protect individuals from wrongful arrest however it can influence effectiveness of investigation sometimes. Custodial interrogation is important because it helps the investigating authorities to collect useful information and evidence that may have been concealed. Granting anticipatory bail in cases where custodial interrogation is important hampers investigation as there is a probability that accused may hamper the evidence. In the case of Nathu Singh v State of Uttar Pradesh court held that court must maintain balance between investigating agencies, victims, and society. If there is no fair investigation it will also hampers right to fair trial will be violated. However, if the accused cooperates with investigation of his case and there is no likelihood of the accused absconding from the clutches of law, custodial interrogation should be avoided. Anticipatory bail can be granted with the condition that the accused will appear before the court whenever he is summoned. In the case of Sushila Aggarwal v State [NCT of Delhi] supreme court held that granting anticipatory bail do not hamper effective investigation in any manner and conditions can be applied while granting anticipatory bail. In the case of Bhadresh Bipinbhai Sheth v State of Gujarat & Anr. J. AK Sikri said that when a person is arrested there is a lot of disgrace attached to it and arrest may lead to various consequences not only for accused but also for his entire family. There is strong social stigma that is attached when a person gets arrested, and court has to consider all factors while deciding a bail application.
IMPORTANT CASES:
- Gurbaksh Singh Sibbia v State of Punjab: Supreme court in this case held that an individual should apply for anticipatory bail when he has appropriate reasons rather than mere fear. The accused must have enough reason to believe that he may get arrested for a non-bailable offences.
- Savitri Agrawal v State of Maharashtra: Supreme court held that reason to believe must be based on reasonable grounds, he must have enough reason to believe that he is likely to get arrested for non-bailable offence.
- Sushila Aggarwal v State of NCT of Delhi (2020): In this case court held that there can be no time limit set while granting anticipatory bail it can continue till the end of trial. If there are reasonable grounds that the accused have less chances of absconding or misusing his liberty while he is on bail, then it is not logical to keep him in custody.
- Siddharam Satlingappa Mhetre v. State of Maharashtra: Apex court laid down indicative factors to be considered while granting anticipatory bail, the court further observed that irrational arrests are gross violation of human rights.
CONCLUSION:
Anticipatory bail is an important legal provision that safeguards the right to life and liberty of a person against wrongful arrest and false accusations. However, anticipatory bail is not an absolute right court has to consider all the factors like nature of offence, likelihood to abscond, misuse of liberty etc. while granting anticipatory bail. Anticipatory bail is granted only in exceptional situation. Anticipatory bail sometimes hampers investigation procedures. Thus courts must balance rights of the accused and interest of society and justice.
Application of anticipatory bail must be judicious, and it must serve its purpose without undermining legal procedures.
FREQUENTLY ASKED QUESTIONS (FAQs):
Q. When is anticipatory bail applicable?
A. Anticipatory bail is applicable to a person who has enough reason to believe that he might get arrested for a non-bailable offence.
Q. Is anticipatory bail granted for all types of offences?
A. No, anticipatory bail is granted for non-bailable offences.
Q. Can anticipatory bail be cancelled?
A. Yes, anticipatory bail can be cancelled if the person misuses the liberty granted to him or if new evidence comes into light.
Q. Can anticipatory bail be applied if an FIR has not been filed?
A. Yes, anticipatory bail can be applied if no FIR is filed but there must be anticipation of arrest.
