ANTICIPATORY BAIL: NECESSITY IN INDIAN LEGAL SYSTEM

INTRODUCTION

Anticipatory Bail generally means ‘pre-arrest bail’. Bail apprehending the arrest. It is a provision given in the criminal law that allows an accused person to apply for bail before being arrested. If a person believes that, he is likely to be arrested on the accusations of committing any non-bailable offence, he can move to the Court for anticipatory bail. Anticipatory bail simply means, bail before being arrested which means, in order to apply for Anticipatory bail the person must be accused of any non-bailable offence. Taking about the provisions of the bail in the criminal procedural law, there are mainly three types of bail:

1. Regular Bail: Means to release a person who is already under and has been kept in the police custody. For this a person has to file the application under section 480 & 483 of the BNSS, 2023 (previously section 437 & 439 of CrPC, 1973).
2. Interim Bail: Means granting bail for temporary release for short period by the court till the application seeking Anticipatory bail or the Regular bail is pending before the Court.
3. Anticipatory Bail: It is the provision which means granting the bail apprehending the arrest. Means pre-arrest bail. In this a person can apply for bail before he has been arrested just on the suspicion of being arrested. For this a person has to file an application under Section 482 of BNSS, 2023 (previously section 438 of CrPC, 1973). 

Whether the Anticipatory bail is to be granted or not is the discretionary power of the power. The court may also impose certain conditions while granting the Anticipatory bail to any person. 

PROVISION AS TO ANTICIPATORY BAIL 

Under the old CrPC of 1898, there was no provision relating to the Anticipatory bail. It was the suggestion of the Law Commission of India. This concept firstly arouse in the 41st Law Commission Report of 1969 that, “the necessity of granting Anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals just on the false accusation so that they can disgrace and defame them. In order to prevent these types of cases pre-arrest bail is necessary. The provision regarding Anticipatory bail is given under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (previously section 438 of CrPC, 1973). This section provides for the Right to liberty to every person. According to the provision, “where any person has reason to believe that he may be arrested on having committed a non-bailable offence, he may apply to the High Court or Court of Session that he may be released on bail.” Anticipatory bail is the discretionary power of the Court and the court may grant such bail only after considering all the relevant factors. While granting the Anticipatory bail the Court may take the following things into consideration:

• The nature and the gravity of the accusation,
• The applicants record that whether he has previously undergone imprisonment,
• The possibility of applicant to flee from justice, and
• Whether the accusation has been made with the objective of harming of injuring the reputation of the applicant.

After considering all these factors, if the court rejects the application of the Anticipatory bail, the Police Officer can arrest such person even without a warrant. Rejection of the Anticipatory bail leads to a warrant. The Supreme Court in Gurbaksh Singh Sibba v. State of Punjab (1980) held that, the provision relating to Anticipatory bail should be interpreted in the light of Article 21 of the Constitution of India. 

CONDITIONS FOR GRANTING ANTICIPATORY BAIL  

While granting Anticipatory bail the High Court or the Court of Session may impose certain conditions on the applicant in the light of the facts of the case, such as:

• The applicant will make himself available for interrogation by a police officer as and when required. 
• The applicant must provide the local police station his current residence address and phone number.
• The applicant shall not directly or indirectly make any threat, inducement or promise to any person acquainted with the facts of the case as to dissuade him from disclosing such facts to the Court or to any police officer.
• That the applicant will not leave the territory of India without previous permission of the Court.  

NECESSITY OF ANTICIPATORY BAIL IN INDIAN LEGAL SYSTEM

As the 41st Law Commission report says that, the necessity of granting Anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of defaming them. In recent times as the society is developing there also emerges various factors of revenge and vengeance which leads to the race of defaming others in order to get profit from them. Further it was also observed that, with the accentuation of political rivalry, there was an increase in this type of scenario. The main aim of this provision is to ensure that no person is confined until and unless proven guilty. The right to liberty is a natural as well as fundamental right of every individual. However, every person has to respect the rights of every other person so that it should not get violated, and as soon as a person is arrested on suspicion of having committing any offence, his right to liberty gets violated. This Right has been enshrined in the Constitution of India under Article 21. In order to protect this right, the Indian Legal System provides for the provision of Anticipatory bail so that if any person has been arrested on any suspicion of having committed any non-bailable offence, he can apply to the court that he may be released on bail. Basically, Anticipatory bail is meant to safeguard any person who has been arrested on false accusation made against him/her, mostly due to professional or personal enmity. Further this provision also helps in preventing harassment and abuse of legal process by the authorities. It prevents the police or investigating agencies form making unjust arrest and detention of any person. 

The necessity of Anticipatory bail in Indian legal system can be understood with the following points:

1. Safeguarding Personal Liberty: The main reason behind this provision is to prevent unnecessary arrest and detention. Its role is safeguarding the personal liberty and right to life as enshrined under Article 21 of the Constitution of India, so that no person shall be deprived of their personal liberty. The provision of Anticipatory bail ensures that individuals are not subjected to any kind of arbitrary arrest and detention. In absence of such kind provision individuals may be vulnerable to custodial harassment. 
2. Upholding Presumption of Innocence: The basic principle of the Criminal Justice System is, “every person is innocent until proven guilty”. Which means an accusation alone should not lead to deprivation of liberty rather such accusation must be clearly and fairly established. In many cases, individuals may face false accusations and implications in criminal cases due to misunderstandings or personal vengeance from their rivals. Anticipatory bail ensures that such individuals must be given a fair chance to present their case before a Court of law without immediate threat of being arrested. 
3. Preventing Misuse of Police Powers: The power of arrest is a significant power given to the enforcement agencies to maintain law and order in the society. But sometimes this power is also misused by these enforcement authorities leading to unauthorized arrests and harassment of innocent individuals. Anticipatory bail acts as a safeguard against such misuse by requiring the law enforcement agencies to justify the necessity of arrest and detention before the court of law. The provision of Anticipatory bail is used as a check on the arbitrary exercise of police and investigating authorities. 
4. Balancing Individual Rights and Public Interest: Anticipatory bail not only protects the rights of the individuals, but also creates a balance over the public interest. The courts while granting the Anticipatory bail considers the factors such as the nature and gravity of the offence which are in the public interest of the society. This ensures that while safeguarding the individuals’ rights and liberties, public safety should not be harmed. Anticipatory bail not only provides for the right of personal liberty but also ensures to prevent misuse by such individual who may pose a threat to public safety.

 The application of Anticipatory bail involves complex legal considerations, including interpreting statutory provisions, balancing rights and ensuring consistency in judicial decisions across different cases. The Supreme Court in Pokar Ram v. State of Rajasthan (1985) has held that, “status in life, affluence would hardly be relevant considerations while examining the question of granting the Anticipatory bail.” 

CONCLUSION

Anticipatory bail in Indian legal system plays a pivotal role in safeguarding the individual’s rights and liberties and upholding the constitutional rights by preventing the abuse of powers of the police and investigating authorities. It imposes check and balance on the arbitrary arrest and also ensures that the principles of justice and fairness. The provision allows an accused person to apply for Anticipatory bail after considering the nature and gravity of the offence and the antecedents of the accused and other relevant factors. But it is the discretion of the courts either to grant or not to grant the Anticipatory bail. And this wide discretion should be used cautiously by the courts so that the concept of arbitrary and fairness should not get violated. The Courts should also establish a thin balance between the personal liberty and public interest before granting the Anticipatory bail. According to the Supreme Court, Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crime nor a shield against any kind of accusation.   

Authored by – Aditya Tripathi, University of Lucknow, Faculty of Law

REFERENCES

Bare Acts: The Code of Criminal Procedure, 1973 & The Bharatiya Nagarik Suraksha Sanhita, 2023.

Book by R.V. Kelakar on Criminal Procedure.

SCC Online 

Anticipatory bail by district courts pdf (e-districts)

Lawbhoomi

Manupatra