What is anticipatory bail and anticipatory bail in 498-A

WHAT IS ANTICIPATORY BAIL

BAIL

The word Bail is not defined in Code of criminal procedure but it has to be understood as a concept.  In a general sense bail means release of a person from custody of police and his delivery to the sureties who undertake to produce him in court upon appointed day. So, basically, that means the temporary release of an accused person awaiting trial.

WHEN WE CAN APPLY FOR ANTICIPATORY BAIL?

Under section 438 of Cr.P.C, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply for the anticipatory bail. So basically it means bail before the arrest. A person can not apply for anticipatory bail after his or her arrest, and then he would to go for regular bail.

WHICH COURT HAS POWER TO GRANT A ANTICIPATORY BAIL?

If we read the section 438(1) of Cr.P.C then it clearly states 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 :

  1. High Court of the state
  2. or the Court of Session for a direction under this section.

That means both the high court as well as the court of session has power or rather we can say has concurrent jurisdiction to hear the application of anticipatory bail.

WHAT FACTORS SHOULD BE CONSIDERED WHILE GRANTING ANTICIPATORY BAIL?

  1. The nature and gravity of accusation.
  2. The antecedents of the accused person (which means the previous background).
  3. The chances of accused of fleeing away from the hands of justice,
  4. The availability of accused for facing the trial or of joining the investigation.

That the Hon’ble Supreme Court has laid down following factors and parameters which should be taken into consideration while dealing with the application of anticipatory bail:

  1. The nature and gravity of the accusation and exact role of the accused must be properly comprehended before the arrest.
  2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of a cognizable offence.
  3. The possibility of the accused to flee from justice.
  4. The possibility of the accused’s likelihood to repeat similar or other offences.
  5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
  6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
  7. Very careful evaluation of the entire available material against the accused.
  8. Clear comprehension of the exact role of the accused in the case.
  9. Consideration with greater care and caution of the material when the accused are implicated with others in the case based on common intention and common object under the Indian Penal Code 1860 s. 34 and s 149 respectively (because over-implication in the cases is a matter of common knowledge and concern
  • While considering the prayer of anticipatory bail a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
  • Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
  • Frivolity and genuineness of the prosecution should always be considered.

These are some factors which should be taken into consideration while deciding the application for anticipatory bail. These factors are not exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situation and circumstances in which a person may pray for anticipatory bail.

HOW ARTICLE 21 OF CONSTITUTION APPLIES TO BAIL MATTERS?

So the law is very settled on bail matters as the Supreme Court has laid down the basic fundamental principle that is “bail rather than jail” or “bail is a rule jail is an exception” because refuse to give Bail is against the Fundamental right.  The Article 21 the Constitution provides us the right to life and liberty. Such right guarantees everyone who is in the territory of India, life with all the freedom to enjoy one's life and liberty.

CAN WE APPLY FOR ANTICIPATORY BAIL BEFORE F.I.R OR CAN WE GET ANTICIPATORY BAIL WITHOUT F.I.R?

Yes, we can move an application for anticipatory before F.I.R as the very first lines of section 438 clearly states “When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence”. So the registering of First Information Report is not a condition precedent to exercise of power u/s 438, all you need to prove is that you have reasonable apprehension that you may get arrested by the police officials in non bailable offence.

WHAT IS NOTICE BAIL UNDER SECTION 438 OF Cr.P.C?

Notice bail means the court directs the police officials to give you notice before he arrest you. Suppose you have applied for an anticipatory bail and the investigation officer filed his status report where he filed that no arrest permission is sought till yet then in that case the court directs the police officials to give you notice before arresting you. In that spam of notice period you can apply for anticipatory bail.

ANTICIPATORY BAIL IN 498-A

The Supreme Court itself has said that the section 498A and 406 of Indian penal code are widely misused and for no reason the husband and his family members are prosecuted and jailed. Thus now it is becoming a legal terrorism

The bail in matrimonial matters is easy but may come with strict imposition of condition. Thus anticipatory bail is cases 498a, 406 is granted easily these days but with conditions and the conditions differs case to case depending on the facts of the case.

WHAT IS 41-A Cr.P.C NOTICE?: WHO ISSUES THIS NOTICE?: WHAT IS THE PURPOSE OF THIS NOTICE?

41-A notice is notice of appearance before the investigation officer when there is a reasonable complaint against the accused person. The investigation officer issues this notice to the person against whom a reasonable complaint is registered. The purpose of issuing this notice is that the investigation to reach the right conclusion.

 

Aman chawla 
on 07 December 2018
Published in Criminal Law
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