Under Section 438 of the Criminal Procedure Code, 1973, there is a provision of Anticipatory Bail which allows a person to seek bail in anticipation of an arrest by the police.
Anticipatory Bail is a direction to release a person on bail before he is arrested by the police.
When any person apprehends that there is chances to be arrested on any false compliant or due to enmity with someone, or if he fears that a false case is likely to be filed against him, then he has his right to move the Court for getting Bail , and the Court may pass a direction that in the event of his arrest, he shall be released on Bail.
This provision of Anticipatory Bail was introduced in the Criminal Procedure Code in 1969 on 41st Report recommendation of Law Commission of India, and the Parliament of India added this provision for Pre-Arrest Bail under the Section 438 in the Criminal Procedure Code, 1973.
The difference between the Regular Bail and Anticipatory Bail is that, a Regular Bail is required after the arrest of a person, whereas Anticipatory Bail is required to prevent the arrest, if a person anticipated that he may be arrest in any false case.
Even in the Economic Offenses cases and in the case of any violation under Foreign Exchange and Regulation Act (FERA), if a person proves that he is being unnecessary harassed by the investigating agency then the Court may grant Anticipatory Bail to him.
As per the judgment on 29.01.2020 of Supreme Court of India in the matter of Sushila Aggarwal Versus State of NCT of Delhi, for getting an Anticipatory Bail, there is not fixed any limitation period, and a person can use this provision till the end of the trial of the case, and even before lodging an FIR against him.
Where to
approach for getting Anticipatory Bail?
The Session
Court and the High Court are empowered to grant Anticipatory Bail with order
that, in the event of arrest, the applicant shall be released on bail without
sending him behind the bar.
However, a person who apprehends his arrest should firstly approach the Session Court, and if his application is rejected by the Session court, then move to the High court for getting Anticipatory bail.
Factors
considered by the Court at the time granting Anticipatory Bail
The Court can
examine the following factors at the time of granting Anticipatory Bail to a
person:
➤There are
sufficient reasons to believe that the person may be arrested on a false case.
➤The against
the person are baseless and the complaint has been filed with dishonest
motives.
➤The nature
and gravity of allegation /accusation.
➤The
antecedent of the person i.e. his involvement in any other offense and whether
has been previously convicted by any Court of law.
➤The possibility of the person to flee from the justice.
Conditions
for granting Anticipatory Bail:
The Session Court or High Court can impose following conditions, at the time of granting Anticipatory Bail:
➧That the
person shall make himself available for interrogation by a police officer as
and when required.
➧That the
person shall not , directly or indirectly make any inducement , threat or
promise to any person acquainted with the facts of the case , so as to dissuade
him from disclosing such facts to the Court or to any police officer.
➧That person
shall not leave India without getting the previous permissions from the Court
➧Such other conditions as may be imposed under sub-section (3) of Section 437 of the Criminal Procedure Code, as if the bail were granted under that section.
Circumstances, when Anticipatory Bail can be refused by the Court:
The Court may
refuse to grant Anticipatory Bail on the following circumstances:
➢When prima facie case made out against the person
➢When the person was previously convicted by the Court in any cognizable offence.
➢When there is the possibility of the person to abscond or a warrant of arrest has been issued by the Court against him.
➢When a cognizable case is made out against the person, and there is possibility to influence the witnesses or investigation of the case.
➢When the offense mentioned by the person not committed and the apprehension of arrest is imaginary.
➢When there are no sufficient grounds for granting Anticipatory Bail.
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