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Introduction

Congress leader Shashi Tharoor, renowned for his diplomatic skills, was mentioned as an accused in the murder case of spouse Sunanda Pushkar. Sunanda was found dead in the suite No.345 of Leela Hotel in Delhi, due to the drug overdose on 17th January 2014. Her husband was charged with the offences of abetment of suicide under section 306 IPC and cruelty under 498A. After taking cognizance of the offence on 5th June, J. Vishal, of Patiala House Court in Delhi ordered him to appear for hearing on 7th July 2018. Shashi Tharoor, through his counsel Vikas Pahwa, Mr. Sibal and Mr. Singhvi applied for anticipatory bail which has been granted by the court today on a surety bond of Rs.1L and has restrained him from fleeing abroad. Mr. Sibal argued that if an accused was not arrested during the investigation, no occasion arose for his or her arrest after filing of the charge sheet as in this case and thus the bail should be granted. Hence follows a treat for the curious legal minds…

What is an Anticipatory Bail?

The article shall take a peek on the topic ‘Anticipatory Bail and it’s whereabouts’.

The old Criminal Procedure Code did not any provision that gave courts the power to grant a bail in anticipation of arrest. It was included in the amended code of 1973. The concept of Anticipatory Bail was first recommended by the 41st Report of the Law Commission of India to protect innocent people who anticipated being charged or apprehended to be arrested for a crime on the basis of false accusation, mostly prevelant between the political parties trying to splash mud on each other for political gains.

The provision is applicable in all of the countries except the state of UP, where during the unrest and emergency of 1976, a lot of such cases rose and the provisions were misused. The govt was forced to remove the provisions of anticipatory bail from the books, as a measure which is in effect until now and a person has to rush to the Allahbad High Court for a stay on arrest under section 482 CrPC.

An Anticipatory Bail can be prayed for in the Sessions Court or the High Court, under section 438 of the CrPC. A person who believes or apprehends that he is going to be tripped for an offence on the basis of false or trump charges, can pray for an Anticipatory Bail beforehand and save himself from being detained if such a complaint is made. The court MAY, if it thinks fit, grant the anticipatory bail to the person. The essentials of an anticipatory bail are -

  1. There should be an apprehension that the person is going to be charged and arrested
  2. The charge apprehended should be of an offence that is a non-bailable one.

So this answers an important question - Whether you can apply for an anticipatory bail even before an FIR is registered against you? Yes, evaluating the provisions of CrPC properly, you can file it even if a person threatens you of filing an FIR to get you arrested.

Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565 is one of the landmark judgments of the SC of India, where it was held that a reasonable belief is sufficient to apprehend an arrest and FIR is not a prerequisite.

What is the time limit on an Anticipatory Bail?

An anticipatory application can be treated in two ways, by an interim order or a final order. If the court has given an interim order in response to an application for anticipatory bail, then it shall extend till the date that has been specified in the order. If it is a final order, then generally there is no set time limit. The case may be steered as the court proceeds and deems fit.

Conditions:

It is pertinent to note that an anticipatory bail is subject to the discretion of the court and application of proper reason before it is granted. The applicant must, by disclosing special facts and events, show that the applicant has a reason to believe, that he may be arrested for a non-bailable offence, so that the court may specify the offence or offences in the application requesting anticipatory bail, in respect of which alone the order will be effective and it is not a blanket order covering all other offences.

Another important point to know is that the concerned courts also have the powers to bind an applicant with some conditions that may be necessary to prevent him from fleeing away from justice. The conditions are dependent upon the circumstances and facts of the case. Eg-

  • Condition that the person shall have to make himself available to the police as and when required, during the investigation.
  • Condition or more of a command to the person to not to influence threat or make promise to any person who is associated with the case so as to dissuade him from disclosing facts to the court or police officer while interrogating to solve the case.
  • Condition that the person shall not leave India without the permission of the court.

Cancellation

When a person has been granted with an anticipatory bail, he is free until the same is not cancelled. Yes, the court even has the power to take away the liberty that you were granted, on an application of the prosecution or complainant, if the court deems so fit to have the process swiftly swish and meet the safety measures necessary.

How to file an anticipatory bail?

When filing an application for anticipatory bail, you have to address the same to the court that you are filing it in, and mention the name of the case, parties or the people involved in the same, along with the FIR number, the sections included in the report and the police station that it was filed in. After completing the head of the application, you move on to the body where you ‘most respectfully submit before the court’ and inform of the situation and tell that the case is false and bogus. You have been falsely implicated and you are being framed for such and such reasons. You will not leave the country without court’s permission and cooperate in the investigation by being present whenever required by the police and most importantly that you will not tamper with the evidence or witnesses of the case. The last part is the prayer, where you pray to be granted with bail, in the case of an arrest by the police in the future. ‘Through Counsel’.

So, the application must be divided into three parts – the head, like that of a letter to any formal body, the body in as many points as required to explain the scenario to the court, in the best manner possible by the best lawyer possible, and lastly, the prayer,  where you request for the anticipatory bail. The application must be typed in a very clear and pleasing manner.

Conclusion

Anticipatory Bail, in the Indian legal system, is a necessary evil. The system’s most important purpose, ie. Protection of the people will be annihilated if the provision is struck down, however, it can be misused by anyone and prove to be dangerous for the ‘protected’. The legislators should think about filling up the loopholes while keeping the doors of Anticipatory Bail limited to cases with strong reason and logic.

What should be ‘anticipated’ by the legislators in the coming future?

Comment your views and suggestion in the comments.


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