Anticipatory bail is a pre-arrest bail that is secured by a person who has a reasonable apprehension of the arrest. The 41st Law Commission recommended the drafting of a provision for the protection of a person fearing arrest in a non-bailable offense.
CODE OF CRIMINAL PROCEDURE, 1973
Giving effect to this recommendation, the provision of anticipatory bail has been included in Section 438 of the Code of Criminal Procedure, 1973. This provision deal with – “Direction for grant of bail to person apprehending arrest”. Thus, we see that the words “anticipatory bail” have not been mentioned under the 1973 code.
When any person has a reasonable apprehension that he may be arrested on the charge of a non-bailable offense, he may make an application before the High Court or Sessions Court for the issue of anticipatory bail. The Court will consider various factors such as the seriousness of the alleged offense, the probability of the accused fleeing, the past criminal record of the accused, etc., before granting the anticipatory bail. After considering all the aforementioned factors, the Court will grant the anticipatory bail ordering that the accused shall be released on bail in the event of an arrest. Granting of anticipatory bail is a discretionary power of the Court and must be exercised only in exceptional cases. This relief can be granted only when the Court finds merit in the application of the accused person and is satisfied that there exist reasonable grounds for granting anticipatory bail to the accused person. It must be noted that anticipatory bail can only be granted where the accused is charged under a non-bailable offense.
Where the Court rejects the application for anticipatory bail, the accused may be arrested by the police without a warrant. In this case, the investigating authority is empowered to arrest the accused by assuming the applicant’s apprehension of arrest as alleged commissioning of an offense.
Furthermore, the Court has to give an opportunity to the public prosecutor to make a representation against the anticipatory bail application before giving a final judgment on the application.
The Supreme Court, in the case ofBhadresh Bipinbhai Sheth vs State of Gujarat, observed that Section 438 of Code of Criminal Procedure relates to the right to life and liberty guaranteed under Article 21 of the Constitution. Furthermore, the apex Court highlighted that Section 438 serves as a medium of safeguarding the liberty of the accused person.
Thus, we see that Section 438 is essential for safeguarding the fundamental right guaranteed under Article 21 of the Constitution. The purpose of this provision is to protect the personal liberty and dignity of an accused person. This provision also ensures that an accused person is not arbitrarily harassed and punished without being proven guilty. However, the Court must also ensure that the accused person is not able to flee justice due to the grant of the anticipatory bail. Hence, the Court may also impose certain conditions such as appearing before the investigation authority whenever required, etc., on the accused person while granting the anticipatory bail.
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