The concept of bail has a lot of importance attached to it. It is a central doctrine in the criminal justice system, that every person is innocent till proven guilty. The Webster’s 7th New Judicial Dictionary defines ‘bail’ as follows: “Bail is a security given for the due appearance of a prisoner in order to obtain his release from imprisonment; a temporary release of a prisoner among security.” The principal aim of bail is removal of restrictive and punitive consequences of pretrial detention of an accused. So when a person has been charged with an alleged offence, he does not lose his right to life and personal liberty. The same applies to a person who is apprehending arrest. In that case, the bail is not an ordinary one that is granted after the arrest, but is given before the arrest. This bail is generally termed as ‘anticipatory bail’, which is basically a direction by the court to release a person on bail, even before the person is arrested. The provision for anticipatory bail is found in s.438 of the Code of Criminal Procedure, 1973.
The word ‘anticipatory bail’ per se has not been used in s.438 of the Code of Criminal Procedure or its marginal notes. The object of anticipatory bail is to relieve a person from unnecessary harassment or disgrace. The law presumes an accused person to be innocent till his guilt is proved and as a presumably innocent person, he is entitled to every freedom and facility to defend himself effectively. A person can file for anticipatory bail if he has reason to believe that he will be accused of an offence in the near future. An anticipatory bail is used to protect the interests of a weaker person from being harmed by his more powerful rival. It is granted when the Court is convinced that he is a person of such status that he would not abscond or otherwise misuse his liberty. S.438 was inserted in the Code of Criminal Procedure, 1973, in order to see that the life and liberty of the innocent person is not jeopardized on flimsy and frivolous grounds at the instance of irresponsible and unscrupulous persons or officers who may be in charge of prosecution.
Section 438 of the Code of Criminal Procedure, 1973 has various provisions for the granting of anticipatory bail. It lays down the directions for grant of bail to any person apprehending arrest. The 2005 Amendment of the Code has brought in a change in the 1st clause of the section wherein certain factors for consideration have been laid down for directing the Courts as to when anticipatory bail can be granted. They are, namely-
(i) the nature and gravity of the accusation;
(ii) the antecedent of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
If the considerations are satisfied, then the anticipatory bail is granted i.e. the High Court or the Court of Session as the case may be, will issue an interim order for the grant of anticipatory bail. However, the blanket guidelines cannot serve the purpose of day to day problems that invariably crop up while dealing with the matter of anticipatory bail. Some prominent points in this regard are-
Anticipatory bail orders should be of a limited duration
Anticipatory bail can be filed either in Sessions Court or High Court
Anticipatory bail can be applied for in the Court in whose jurisdiction the person ordinarily resides
Circumstances which should be borne in mind while determining the question of anticipatory bail
A ‘blanket order’ of anticipatory bail should not generally be passed
Order of anticipatory bail must show the reasons for making the order
Absconding person cannot be released on anticipatory bail
Anticipatory bail to be effective till the conclusion of the trial
Anticipatory bail once rejected by the Sessions Court cannot be maintainable on the same ground
Cancellation of anticipatory bail- When the police are deprived of speedy and effective investigation, then the anticipatory bail order can be cancelled. Anticipatory bail can also be cancelled when the judge has exercised his judicial power wrongly. The request for anticipatory bail is also turned down when public interest so demands and prevails.
The provision for anticipatory bail is an absolute must, especially in a society like ours. If a person gets wrongly implicated, not only he himself, but also his family and relatives have to bear the brunt. Thus, a question of discomfort for many people is involved and the matter elicits serious consideration.
Anticipatory bail, though a boon for many in the society, can also be used by individuals for wrong purposes. Thus, the criminal justice system has to be strengthened in order to prevent such occurrence and misuse of the provision. Only then can s.438 providing for anticipatory bail achieve its true meaning and purpose and lead to development of a progressive legal system in the society.
Aditi Aparajita, Member, SACJ 2007-08, NUJS
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1 comment:
Good post. The modern concept of bail seems to be strictly a western concept. How is it viewed in different cultural aspects? Or, viewed by persons not familiar with the concept? I ask because of personal experience - once, as a watch commander I was explaining bail to the family of a young man arrested for a non-violent felony charge. His parents were recent immigrants; they returned and brought the money directly to me. Somehow,they had mistaken my explanation of the bail process as some type of bribe to allow their son out of jail. After a more lengthy conversation, with a different intrepreter, I think they understood; well, at least they got a receipt - not something normally associated with a bribe.
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