Anticipatory Bail

Bail:

• Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required.
• It signifies a security/collateral deposited before the Court for release.

Types of Bail in India:

• Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
• Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
• Anticipatory Bail: A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted. For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC). It is issued only by the Sessions Court and High Court.

Offences and Anticipatory Bail

• An application for anticipatory Bail can be filed in cases of both bailable and non-bailable offences.
• While in the former situation, the Bail is granted as a matter of right, the grant of Bail in the latter situation is not a matter of right but a privilege & is at the behest of the discretionary power of the Court.
• Bailable Offence: Sec. 436 of the CrPC lays down provision for granting Bail to a person accused of any bailable offence under the IPC.
• Bailable offences are offences or crimes that are not very serious in nature and include: unlawful assembly (Sec. 144 of CrPC), payment of bribe during elections, fabrication of false evidence, participation in riots, furnishing false information, causing death by negligence (Sec. 304A), stalking, criminal defamation, etc.
• Non-bailable Offence: Sec. 437 of the CrPC lays down the power of court to grant Bail to a person accused of committing a non-bailable offence under the IPC.
• Non-bailable offences are grave and serious offences which include: sedition, waging or attempting to wage war against the government, counterfeiting of Indian currency, murder (Sec. 302), dowry death (Sec. 304B), abetment of suicide, trafficking of a person, rape (Sec. 376), etc.

Factors & Conditions for Granting Anticipatory Bail

• The anticipatory Bail is granted on the basis of the following factors:

1. Nature and gravity of the accusation.
2. Applicant’s possibility of fleeing from justice.
3. Previous cases against the applicant including any previous convictions or cases of a cognizable offence.

Cases of Bailable Offence:

• If there are sufficient reasons to believe that the accused has not committed the offence.
• As per the Court, if there are sufficient reasons to conduct further enquiry into the matter.
• If the person is not accused of a crime which is punishable by death, life imprisonment, or imprisonment up to 10 years or more.

Cases of Non-bailable Offence:

• If the accused is a woman or child,
• If there is a lack of adequate evidence,
• If there is a delay in registering the FIR by the complainant,
• If the accused is physically or gravely sick,
• If there is corroboration about personal animosity between accused and complainant.

Cancellation of Anticipatory Bail

• Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail.
• They imply that a Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts.
• A High Court or Court of Session may direct that any person who has been released on Bail by it- be arrested, and brought under custody after filing of an application by the complainant or the prosecution.
• However, a Court does not have the power to cancel the Bail granted by the police officer.