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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 theorem 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. The following information will help you understand what is an Anticipatory Bail; Application for Anticipatory Bail; Application Seeking Grant of 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.
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.
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 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-bail able offence" been defined in Sec.2a 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.
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 a 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 497 of Cr. Pc. Bail can be granted for both bail able as well as non-bailable 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.
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.
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 her 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-bailable. While in the former bail in granted as a matter of right, the grant of bail in the latter is based on several contingencies.
The public prosecutor will talk to the police officer concerned. If there is no FIR filed, the PP would be of the view that there were no grounds for granting anticipatory bail. The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail. The lawyer will make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest. In all the above cases, judge will grant plea. An order will be passed accordingly. This is called the ‘notice bail' commonly. If the bail application is rejected in the Sessions Court then it would be applied in High Court. If the High Court also rejects the bail, then further application on Supreme Court is permitted. In cases when the FIR has been filed, the Investigating officer will send a notice of arrest. As soon as that notice is received, one should apply for anticipatory bail following the same procedure as stated above.
The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or prosecution in case any of the conditions imposed by the Court are being violated.
The petitioner is no longer entitled to statutory bail under Section 167(2) of the Code of Criminal Procedure. Petitioner has filed an application for grant of statutory bail under Section 167(2) due to default of the prosecution.
Illegal and therefore, the petitioner is entitled for the statutory bail under Section 167(2) of the Code of Criminal Procedure. Charge sheet, the petitioner was entitled for statutory bail notwithstanding that the charge sheet came to be filed subsequently.
Accused moved an application for grant of statutory bail under Section 167(2) of the Code of Criminal Procedure seeking grant of statutory bail. Counsel for the accused is directed to supply the copy of the same.
UAPA Act and order dated 28.6.2017 denying statutory bail to the petitioners herein. Hence, that prayer is being incidental to the principal. Accordingly, the petitioners had availed of statutory bail in 28.6.2016 in prior to filling of police.
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 • 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
This case regards with grant for arrest bail in respect of non-bailable warrants issued against the petitioners in this case. They are filing the petition for grant of pre-arrest bail as the learned Chief Judicial Magistrate, Chandigarh has issued.
The court may direct the following persons may be released on bail,
i. Any person under the age of 16.
ii. Any person above the age of 60.
iii. Any woman.
iv. Any sick of infirm person.
v. In case of further inquiry.
vi. Rule of consistency.
vii. Cross case.
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.
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.
Anticipatory bail is a misnomer as it is not bail presently granted in anticipation of arrest. When the Court grants anticipatory bail what it does is to make an order in the event of arrest, a person shall be released on bail. In many cases, husbands and family members arm themselves with anticipatory bail, even when discussions are going on between husband's and wife's families for reconciliation for any family dispute. This vitiates the entire atmosphere making reconciliation even more challenging. Manifestly, there is no question of release on bail unless a person is arrested.
Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. Thus this paper dealt with how administration done in various States in India regards to Anticipatory Bail.