Bail is the release of an accused person during the pendency of the trial. It is the judicial release of an accused charged with a certain offense by imposing some restrictions on him and compelling him to remain within the jurisdiction of the court.
What is Anticipatory bail?
If a person anticipates his arrest by police shortly, he can safeguard himself from the arrest by availing an Anticipatory bail under section 438 of the CrPC.
If anticipatory bail is granted to a person then he cannot be arrested by Police. However, the safeguard against the arrest is only till the deadline of the anticipatory bail.
Post the deadline of anticipatory bail, police can arrest the accused. Provision to extend the period of the anticipatory bail is also available.
To know more about anticipatory bail and how different it is from other types of bails, click here.
In this article, important case laws on anticipatory bail have been discussed briefly.
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Case Laws where Anticipatory Bail was denied:
1. In the recent case of Nathu Singh & Ompal Singh Vs. State of Uttar Pradesh & others (2021), the Supreme Court while dismissing an anticipatory bail plea remarked that Courts have been enshrined with discretionary powers for deciding anticipatory bail pleas.
“However, such discretionary power cannot be exercised in an untrammelled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant, and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.
2. In Sushila Aggarwal and others Vs. State (NCT of Delhi) & another the SC held that
“The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances.”
In the same case, the Constitution Bench of the Supreme Court held that
“Anticipatory bail granted to a person should not invariably be limited to a fixed period. Anticipatory Bail granted to a person can continue till conclusion of Trial.”
Case Laws where Anticipatory bail was granted:
1. In the case of M.C. Abraham and another VS. State of Maharashtra the SC held that rejection of anticipatory bail does not mean that the petitioner must compulsorily be arrested.
“A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offense, the background of the accused, the facts disclosed in the course of the investigation and other relevant considerations.”
In this case, the HC has ordered to arrest the accused when his anticipatory bail was rejected on an erroneous assumption that arrest has to be made if anticipatory bail was rejected.
2. In the case of Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, the SC bench held that anticipatory bail for an offense committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, can be granted with only one condition that the court hearing the matter has heard the complainant’s side himself.
3. The Supreme Court in the year held in the Case of BHADRESH BIPINBHAI SHETH Vs. STATE OF GUJRAT & ORS. held that “the benefit of anticipatory bail cannot be denied when a charge even of serious offence like under section 376 IPC is added after a long period of time and inaction of the prosecutrix is also a contributory factor to such delay.”
Other important case laws:
1. In the case of M.P. & Anr. Vs. Ram Kishan Balothia and Anr, the SC held that getting anticipatory bail cannot be considered as a fundamental right mentioned under article 21 of the Indian Constitution.
2. In Savitri Agarwal v. State of Maharashtra & Anr, the Apex Court remarked that the petitioner seeking anticipatory bail should have a reason to believe that he is likely to be arrested. And the belief should be backed with specific events and facts that can help the Court judge the reasonableness of his belief.
3. Guidelines regarding the grant of anticipatory bail have been laid down in the landmark case of Gurbaksh Singh Sibbia vs. State of Punjab.
Note- To Read Judgment click on Name of Parties
Story by Harshwardhan Pawar – Intern
