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Anticipatory Bail: Grant, Cancellation and Grant of Bail by Police in Non-bailable Case

Anticipatory Bail:

The concept of anticipatory bail provides individuals with the legal right to seek protection from arrest before being accused of a non-bailable offence. Essentially, it serves as a pre-arrest bail. Its main purpose is to protect individuals from the possibility of arbitrary arrest and detention, safeguarding their fundamental right to liberty and fair trial.

Upon being granted, anticipatory bail remains in effect until the conclusion of the trial, as stated in the case of Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr, 2020 SCC OnLine SC 98.

Filing of Anticipatory Bail:

A petition for anticipatory bail may be submitted in cases where a person fears arrest for a non-bailable, cognizable offence. This application can be made even before an FIR is registered if there is a valid reason to believe that arrest is imminent. However, it is not advisable to file for anticipatory bail when the circumstances are unclear or if there is no real risk of arrest. Additionally, it is not recommended to apply for anticipatory bail if there is a strong possibility of rejection, as this could indirectly pressure the police to make an arrest.

In accordance with Section 438 of the Criminal Procedure Code (CrPC), both the Court of Session and the High Court have the power to consider Anticipatory bail petitions. The validity of anticipatory bail remains in effect until the trial ends or until it is revoked under section 439 of the CrPC.

In order to obtain anticipatory bail, a person must submit an application to the court, stating the perceived threat of arrest and providing valid reasons as to why bail should be granted. The court takes into consideration multiple factors, including the severity of the offense, the applicant's criminal history, the likelihood of absconding, and the potential danger to society if bail is granted.

If the court grants anticipatory bail, the individual is shielded from arrest for a specified period, allowing them to cooperate with the ongoing investigation without the fear of being detained. However, the bail is subject to certain conditions determined by the court, such as surrendering their passport, regular reporting to the police, or refraining from tampering with evidence.

It is important to note that anticipatory bail does not serve as a protection against prosecution, but rather as a safeguard against unjust arrest. It upholds the principles of justice and ensures that individuals are not deprived of their liberty without due process of law.

Courts where Anticipatory Bail Can be Filed:

In India, those seeking anticipatory bail have the option of filing their request either with the Sessions Court, typically found at the district level, or directly with the High Court, which operates at the state level. Although both courts have the power to grant anticipatory bail, it is generally advised to first approach the Sessions Court. This approach allows the applicant to have two chances for relief, as they can then appeal to the High Court if their initial request is denied. Usually, High Courts do not entertain direct anticipatory bail applications, and prefer them to be filed with the Sessions Court first.

However, in certain exceptional situations, such as the absence of legal representation due to lawyers' strikes, the closure of the Sessions Court, or safety concerns in attending the local court, the High Court may consider anticipatory bail applications directly. This ensures that individuals have access to justice even in extraordinary circumstances.

If the anticipatory bail is rejected by the High Court, an individual can seek relief from the Supreme Court through a Special Leave Petition (SLP) under Article 136 of the Indian Constitution, requesting permission to appeal against the High Court's ruling. If the Supreme Court grants permission to hear the petition, it will examine the case thoroughly, including the grounds for anticipatory bail. The Supreme Court has broad discretionary powers under Article 136 to intervene in matters of public importance or to address serious miscarriages of justice.

Grounds for Grant of Anticipatory Bail:

Individuals who fear being arrested for a non-bailable offense can seek anticipatory bail. Before granting such bail, courts take into account various factors. These include the likelihood of the accused evading justice, taking into consideration their past behaviour, social status, and ties to the community.

In addition, the court reviews the strength of the evidence against the accused and the severity of the alleged crime. Should the court find the evidence lacking or have doubts about the truthfulness of the accusations, it may choose to grant anticipatory bail to prevent any potential unfair treatment or harassment of the accused.

Furthermore, the court also considers the principle of protecting personal freedom and ensuring that individuals are not unjustly deprived of their liberty before being proven guilty. Thus, if the court deems it necessary to safeguard the fundamental rights of the accused while ensuring the continuation of legal proceedings, anticipatory bail may be granted.

Procedure of Grant of Anticipatory Bail:

Upon submission of an anticipatory bail application by an applicant, the Court possesses the following choices: it can outrightly reject the application, it may grant interim anticipatory bail and serve notice to the Public Prosecutor, it might issue notice to the Public Prosecutor without providing interim relief, or if the application is dismissed or no interim relief is granted, the police are authorized to arrest the applicant without a warrant. Subsequently, after a hearing from the Public Prosecutor, the application undergoes a final hearing, and a conclusive order is issued.

The Court also holds the power to require the presence of the applicant during the final hearing. In the event of granting anticipatory bail, the Court has the discretion to impose conditions, but these conditions should be determined based on the specific facts and circumstances of the case, rather than a routine imposition across all cases.

Conditions Imposed by Court while Granting Anticipatory Bail:

The decision to impose conditions or special conditions in cases of anticipatory bail is based on the unique circumstances of each case. Some potential conditions that may be imposed include:
  • Requiring the individual to make themselves available for police questioning as needed.
  • Prohibiting the individual from attempting to intimidate or influence anyone with knowledge of the case to withhold information from the court or law enforcement.
  • Requiring prior approval from the court for the individual to leave the country.
  • Ensuring compliance with the conditions stated in the bail bond.
  • Preventing the individual from engaging in similar criminal activities.
  • Prohibiting any attempts to tamper with evidence or influence witnesses.
Additionally, more restrictive conditions may be imposed if deemed necessary by the state or investigating agency. However, such conditions should only be imposed when justified by the specific circumstances of the case and not as a standard procedure for all cases (Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr, 2020 SCC Online SC 98)

Appeal in Higher Court:

Once the Sessions Court denies anticipatory bail, the applicant can appeal to the High Court, safeguarding their right to seek relief from higher judicial authorities in cases where their rights have been violated or they perceive an injustice in the lower court's decision. This avenue ensures that individuals have the opportunity to seek justice at a higher level.

In case the High Court also rejects the application for anticipatory bail, the applicant can further escalate the matter to the Supreme Court by filing a Special Leave Petition (SLP) under Article 136 of the Constitution of India. It is important to note that the Supreme Court only grants leave to hear petitions on their merits, ensuring that only cases of significant legal or constitutional importance are considered at this level.

No Restriction on the Number of Times an accused can Request Bail:

Generally, there are no strict legal limitations on the number of times an accused individual can request bail after their initial application has been denied. However, repeated bail applications may come under closer scrutiny by the courts, particularly if there are no significant changes in circumstances or new grounds presented in subsequent requests. The courts may view these repeated applications as an abuse of the legal system or an attempt to unnecessarily burden the judicial process.

Each bail application is evaluated independently, with consideration given to factors such as the severity of the offense, the strength of the evidence, the accused's criminal history, and any changes in circumstances since the previous application. If there are substantial changes or new evidence presented in a subsequent bail application, the court may reconsider its decision.

However, if the court deems the subsequent application to be essentially a repetition of previous arguments or lacking sufficient merit, it may reject the request without further consideration. Therefore, although there is no set limit on the number of times an accused can apply for bail, it is crucial for each application to present valid grounds and demonstrate a change in circumstances in order to increase the likelihood of success.

Changed Circumstances for Subsequent Bail Applications:

In order to increase the chances of success in subsequent bail applications, it is crucial to demonstrate a change in circumstances when initially applying for bail. This change could involve presenting previously unavailable evidence, such as alibis or witness statements or submission of charge sheet in the case within the time period prescribed in section 167 CrPC i.e. either 60 days or 90 days.

Additionally, the accused's personal circumstances, such as health problems or family responsibilities, may also be taken into consideration. Furthermore, changes in the legal landscape, such as the granting of bail to co-accused or alterations in the severity of charges, can also be significant factors in determining a change in circumstances. Essentially, any new development that strengthens the case for bail or alters the context of the accused's situation can be used as evidence to compel the court to reconsider the bail application.

Cancellation of Bail:

According to Section 439(2) of the Criminal Procedure Code (CrPC), a court that has granted bail to an accused has the power to later revoke the bail under specific circumstances. This provision acts as a safeguard to uphold the integrity of the legal process and ensure fair administration of justice.

The reasons for cancelling bail under Section 439(2) typically involve violations of bail conditions, such as failing to appear in court or tampering with evidence. If the accused breaches any conditions set by the court or engages in actions that undermine the fairness of the trial or pose a threat to public safety, the court may use its discretion to cancel the bail.

Furthermore, if new evidence emerges that significantly impacts the merits of the case or suggests that the accused may interfere with the investigation or trial, the court has the authority to revoke the bail. This provision guarantees that the court has the necessary power to maintain the rule of law and safeguard the interests of justice while also protecting the rights of the accused.

Can Police Grant Bail in a Non-bailable Case?

Section 437(2) of the Criminal Procedure Code offers an alternative route for individuals facing non-bailable charges to request for bail. This provision is activated when the investigating officer or court realizes that there is no reasonable basis to believe that the accused committed the non-bailable offence, but there are enough grounds to continue investigating their guilt.

Under this provision, the accused can be granted bail under certain conditions, such as posting a bond without any sureties for their appearance in court for further proceedings. The decision to grant bail lies with the discretion of the investigating officer or court handling the case.

In essence, Section 437(2) serves to prevent individuals from being unjustly held in custody when there is insufficient evidence to support their detention for a non-bailable offense. It strikes a balance between the interests of justice and the rights of the accused, allowing for further investigation while safeguarding the accused's freedom.

Hence, it is not true that under no circumstances can the police grant bail in non-bailable case.

Court Judgments:
  • On November 20, 2023, in a groundbreaking verdict titled Priya Indoria v. State of Karnataka and Ors., Justices B.V. Nagarathna and Ujjal Bhuyan of the Supreme Court clarified the jurisdictional authority of High Courts and Sessions Courts in regards to Transit Anticipatory Bail. This ruling overturned previous precedents established by the Calcutta and Patna High Courts, asserting that Courts possess the power to grant anticipatory bail even in cases where the First Information Report (FIR) is filed in a different state.

    This decision marks a significant departure from previous interpretations and reflects a more expansive approach towards anticipatory bail jurisdiction. However, the Supreme Court also stressed the importance of exercising judicious discretion, urging Courts to only grant such bail in exceptional circumstances. By providing clarity on this issue, the Court aims to ensure fair and consistent application of anticipatory bail provisions across different jurisdictions, thus upholding the principles of justice and constitutional rights.
  • A state appeal was initiated in Supreme Court, wherein the State of Haryana moved against the grant of anticipatory bail by Punjab and Haryana HC through its order on 03-12-2021. The Bench comprising Justices Ahsanuddin Amanullah and SVN Bhatti declared that since the accused has not taken any steps to quash his proclaimed offender declaration, he cannot resort to an application for anticipatory bail.

    Accordingly, it was held that the petition filed under Section 438 of the Code of Criminal Procedure (CrPC), 1973 should have been dismissed as he is a Proclaimed Offender, in the absence of any exceptional situation.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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