Anticipatory Bail

Anticipatory Bail

Why in news  ?

The Supreme Court recently held that the Sessions Court or High Court would have the power to grant interim/transit anticipatory bail when the FIR is not registered within the territory of a particular State but in a different State.

Anticipatory Bail

What is Bail and What are its Types?

Definition: 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 or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.

What are the Judicial Interpretations of Pre-Arrest Bail?

  • The Supreme Court (SC) of India has held that the power to grant pre-arrest bail is an extraordinary power to be exercised only in exceptional cases.
  • Gurbaksh Singh Sibbia vs State of Punjab (1980) case: SC ruled that “Sec. 438(1) should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution.”
  • Granting of anticipatory Bail as a matter of right of an individual should not be limited by time.
  • The Court could impose appropriate restrictions on a case-by-case basis.
  • Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: SC overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time.

What are the Conditions for Granting an Anticipatory Bail in India?

  • The person seeking anticipatory bail should have reason to believe that they may be arrested for a non-bailable offense.
  • The court may also impose a monetary bond, which the person seeking anticipatory bail will have to pay if they fail to appear before the court or violate the conditions imposed.
  • The person seeking anticipatory bail must make themselves available for interrogation by the investigating officer as and when required.
  • The court may grant anticipatory bail for a limited period, and the person will have to surrender to custody once the period expires.

On What Grounds Anticipatory Bail can be Cancelled?

Sec. 437(5) & Sec. 439 of Cr PC 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.

Source – The Hindu

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