Anticipatory Bail | Section 438 of Cr.PC, 1973 | Grounds before Supreme Court
What is Anticipatory Bail ?
Anticipatory Bail stands as a significant legal provision ensuring the protection from Arrest by Police.
Section 438 of Cr.PC, 1973 speaks about the provision of anticipatory bail. The legal provision aims to prevent the misuse of judicial process.
The Indian legal system has a provision to safeguard the rights and liberties of individuals against wrongful arrest and detention.
The Section 438, providing right to seek anticipatory bail, thus its a milestone in the justice system of India.
Necessary of Pre-Arrest Bail
Anticipatory bail, as the term suggests, allows an individual to seek bail in anticipation of their arrest.
After registration of First Information Report, if someone has apprehension of arrest, he can file bail application.
An individual has to approach the court for bail before police arrest him, thereby preempting the possibility of detention.
This provision empowers individuals who fear imminent arrest due to false accusations, frivolous charges, or other malicious intents.
Jurisdiction of Court for Anticipatory Bail
To obtain pre-arrest bail, an individual must approach the Session Court then High Court & Supreme Court .
The court, upon hearing the arguments presented by the applicant and the prosecution, may grant bail if satisfied that the applicant has a legitimate apprehension of arrest and that granting bail would not obstruct the course of justice.
Grounds for Anticipatory Bail
Prima Facie Case: The court assesses the facts of the case and evaluates whether there exists a prima facie case or not.
If the accusations appear frivolous or lack substance, the court may be inclined to grant pre-arrest bail.
Apprehension of Arrest: The applicant must demonstrate a genuine fear of imminent arrest based on reasonable grounds.
This could stem from threats, harassment, or the nature of the allegations leveled against them.
Cooperation with Investigation: Courts may consider whether the applicant is cooperating with the investigation authorities.
Full cooperation, including the willingness to appear for questioning and provide necessary assistance, may strengthen the case for bail.
Criminal Record: The applicant's past criminal record, if any, may influence the court's decision. A clean record may weigh in favor of granting pre-arrest bail, while a history of criminal activity could raise doubts regarding the applicant's credibility.
Likelihood of Fleeing Justice: The court evaluates whether granting anticipatory bail would pose a risk of the applicant absconding or tampering with evidence.
Adequate safeguards may be imposed to ensure the applicant's presence during the trial proceedings.
Cancellation of Bail
Victim can file an application for Cancellation of Anticipatory, if the victims feels the Court has granted bail without considering gravity of offence.
State as well as Victim can also file application of Cancellation of Bail Application if the accused violates the conditions imposed by Court.
Anticipatory Bail by Supreme Court
If Session Court as well as High Court rejects bail application, individual can file anticipatory bail before Supreme Court.
If any Criminal Advocate in Supreme Court convinced to the Court to get pre-arrest bail by Supreme Court.
After rejection of Bail Application by High Court, Individual can take help of Supreme Court Advocate in Delhi for Bail Matters.
The Constitution Bench in this case emphasized that provision of pre-arrest bail enshrined in Section 438 of the Cr.PC.
The Hon’ble Supreme Court held pre-arrest Bail is directly related to Article 21 of the Constitution which relates to personal liberty.
Bar of Anticipatory Bail under SC-ST Prevention of Atrocity Act, 1989
Section 18 of SC-ST Prevention of Atrocity Act, 1989 speaks that Section 438 of the Code does not apply to persons committing an offence under the Act.
As per Section 18 “Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
Supreme Court Advocate in Delhi for Bail Matters can file application for pre-arrest bail before Supreme Court.