DETAILED NOTE ON ANTICIPATORY BAIL

The right to liberty is the natural right and also the fundamental right of an individual.
However, a person has to respect the rights of others recognized by law like the inviolability of their
body and their property. When a person is reasonably suspected to have committed an offence the
machinery of law is set in motion to arrest him and to bring him to trial and punish him if found
guilty. The act of arrest deprives a man of his liberty. Bail sets him free on securing his promise to
take trial at a future date and to undergo punishment if found guilty.

The concept of bail flows from the right to liberty which is sanctified as one of the fundamental
rights in the Constitution of India in Article 21 and its practice prescribed in Article22(2) as a
working thereon and its corollaries in the provisions of Sections 436, 437 and 439 of the Code of
Criminal Procedure, 1973 with a new multiple of Anticipatory Bail thrown in to be resolved into
infinite kindly factors by the developed minds of judges imagining what the true state of facts would
have been to balance for the time being the agonies of the supposed wrong-doer and the wronged.

Law Commission of India in its 41st report recommended incorporating a provision for
Anticipatory Bail. Section 438 of Criminal Procedure Code dealt with the Anticipatory Bail. This
provision allows a person to seek bail in anticipation of an arrest on accusation of non-bail able
offence having committed by him. It is a direction to release a person on bail, issued even before the
person is arrested. In this I will be dealing with Anticipatory Bail; Application for Anticipatory Bail;
Arrest; Pre-Arrest Bail; Protection of Anticipatory Bail; Refusal to Bail; Resale on Bail; Scope of
Sections 167 and 438 and further the article concentrates on the power of misusing anticipatory bail
and its suggestions given by the government and scholarly members.

Introduction
Bail means temporary release of an accused person awaiting trial, sometimes on condition that a sum
of money is lodged to guarantee their appearance in court. In other words release or secure the
release of a prisoner on payment of bail. It may be defined as Security. Such as cash, a bond, or
property, pledged or given to a court by or on behalf of one accused of committing a crime, to obtain
release from incarceration and to ensure the person's future appearance in court when required
during the criminal proceeding. Bail is money or some property that is deposited or pledged to a
court, in order to secure the release from custody or jail of a suspect who has been arrested, with the
understanding that the suspect will return for their trial and required court appearances. From the
above, to conclude what bail is, as a concept in law, means an accused is granted release from
custody from officers of the law (the police) and into the custody of a person that is normally known
to the accused as sureties.

Purpose
The object of arrest and its detention of the accused person is primarily to secure his appearance at
the time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If
his presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it
would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal
DETAILED NOTE ON ANTICIPATORY BAIL
proceedings against him. The provisions regarding the release of the accused person on bail are
aimed at ensuring the presence of accused at his trial but without unreasonably and unjustifiably
interfering with his liberty.

There is no definition of bail in the Code, although the terms "bail able offence" and "non-bailable
offence" been defined in Sec.2 (a) of the Code. Bail is the amount of money defendants must post to
be released from custody until their trial. Bail is not a fine. It’s not supposed to be used as
punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all
pretrial hearings for which they must be present. In bail, we pay a set amount of money to obtain our
release from police custody. As part of our release, we promise to appear in court for all of our
scheduled criminal proceedings. If we show up to court as promised, bail amount will be refunded or
returned.

Types of Bail
With the Constitution of India, there is one basic rule with the law as Bail and not Jail. Thus,
everyone who is accused of an offence Civil or Criminal has a right to apply for Bail. Only
exception for it is if the said or accused is a repeat offence maker or other is a dire possibility of the
fleeing away from justice, intimidating the witness or the crime is grave enough. Bail is the kind of
security that you provide to the law for them to release you. It is a surety that you would be available
in court as and when required in future. As mentioned before bail is the right, its right to freedom
and that must apply for it. There are different categories of bails applicable depending upon the type
of charges.

 Interim Bail: - is for certain period of time granted before hearing to the prosecution.
 Permanent Bail: - Permanent in nature and granted only after hearing to the petitioner as
well as the prosecution.
 Bail before Arrest: - it is granted when the court feels that the accused is falsely involved in
the case and an arrest would affect his honor and dignity badly.
 Bail on Arrest under Section 437 of Cr. Pc. : - Bail can be granted for both bail able as
well as non-bail able offences after the accused is arrested against a charge.
 Protective Bail: - A bail granted so that the accused can approach the provincial court for
getting a pre-arrest bail without touching its merit.
 Directly Approaching Superior Court: - The Superior Courts can grant pre-arrest bail in
some appropriate cases directly if the accused has been deprived or prevented of approaching
lower courts.
 Bail For The Convict: -  Once convicted, bail is granted to the accused even if the appeal
for the same is accepted if court finds that there are considerable grounds for his/her release.

Anticipatory Bail
DETAILED NOTE ON ANTICIPATORY BAIL
The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in
cases of cognizable offences. Bail is a legal relief that a person may be entitled to in order to get
temporary freedom until his case is disposed of. Depending on the gravity of the allegations, a
person may be able to avoid arrest altogether. However, there are cases in which arrest is made and
the accused is set free as per the provisions of the bail as given under the Criminal Procedure Code.
In cases of Criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to
many accused person. It is literally applied for in anticipation of arrest.

Application of Anticipatory Bail

Anticipatory bail is literally applied for ‘in anticipation of arrest'. It is a direction to release a person
on bail, issued even before the person is arrested. If the accused has a reason to believe that he or she
may be arrested on accusation of having committed a non-bail able offence then he or she has the
right to apply for an anticipatory bail in the Sessions Court or High Court. One may apply for
anticipatory bail after learning about a criminal complaint made against them to the police by their
wife, or by any threats made by hr family against themselves and their family. It is also important to
know whether, in cases where the FIR has been filed, the offence is bail able or non-bail able. While
in the former bail in granted as a matter of right, the grant of bail in the latter is based on several
contingencies.

Arrest
An arrest is the act of depriving people of their liberty, usually in relation to an investigation or
prevention of a crime, and thus detaining the arrested person in a procedure as part of the criminal
justice system. Police and various other officers have powers of arrest. An arrest can be made not
only by law but also can be by any citizen who has that authority to arrest from the fact of being a
citizen. Under common law, a citizen may make an arrest for any felony actually committed, or for a
breach of the peace committed in his or her presence. A bail been taken before arrest is known as
pre-arrest bail. Pre-arrest bail is most commonly known as anticipatory bail since it is a legal relief
in anticipation of a possible arrest. If any person apprehends that there is a move to get him arrested
on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to
be built up against him, or becomes aware of such case being lodged against him, he has the right to
move the court of Sessions, the High Court or another court of competent jurisdiction under Code of
Criminal Procedure for grant of bail before arrest. In case, if a person looking for immediate relief,
then Aboori i.e., Anticipatory bail would be the first legal weapon in a court of law. Section 498 of
CrPC talks the Conditions for grant of Pre-arrest Bail. The main conditions to be satisfied before
exercise of jurisdiction in pre-arrest bail under are as follows-
• Apprehension of Imminent Arrest.
• Arrest being for ulterior motives such as humiliation and unjustified harassment.
DETAILED NOTE ON ANTICIPATORY BAIL
• Irreparable injury to reputation & liberty.
• Otherwise a fit case for bail before arrest.
• Physically surrender before the court.
• Petition before Session Court.
• Motivation of police on police on political consideration.

Praveen Bhatia and Others vs. State of Punjab and Another

Refusal to bail
A bail may be refused when there is an ‘unacceptable risk' of certain behaviors like the accused
person might not appear in court, commit further offences while on bail. A person charged with a
crime should not be denied freedom unless and until there is a good reason. The main reason for
refusing bail is that the defendant is accused of an imprisonable offence and there are substantial
grounds for believing that the defendant would abscond.

Anticipatory Bail-438 Cr.P.C

There are many misconceptions floating around regarding Anticipatory Bail. One such
misconception is that a 498a case is an automatic arrest warrant. However, it does not necessarily
have to be so. In 498A cases, the moment you get an anticipatory bail, the police are eliminated as a
factor and you've pretty much won the most difficult part of this fight. Another misconception is that
the filing of FIR is a must before getting Anticipatory Bail. Again, this is simply not true. Most of
the times, lawyers don't fully understand the provision of anticipatory bail given in Section 438 of
Cr. P. C. This article tries to explain the meaning, usage, conditions applicable, regarding
Anticipatory Bail with the help of recent Supreme Court Judgments.