HOW TO ACE AN APPLICATION FOR ANTICIPATORY BAIL.
BY- AAVANI R C
The Code of Criminal Procedure, 1973 does not expressly state the term ‘anticipatory bail’, instead grants the same under S.483 as ‘bail on apprehension of arrest’. When a person anticipates that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the Sessions Court or High Court to grant bail in the event of such arrest1. The Court may grant the same as interim order or reject it after considering factors such as nature and gravity of accusation; previous imprisonments or convictions undergone by the applicant in any cognizable offence; the chances of the applicant fleeing from justice; chances of tampering with evidence and whether the ulterior motive of humiliating the applicant through the arrest is involved.
It is evident from the wordings of the provision that the legislative intent was to give maximum discretion to the Court, pertaining to the decision on granting anticipatory bail. This includes matter pertaining to limitation period of the same2, ie., once granted the anticipatory bail should ordinarily be available till the end of the trial unless interim protection is curtailed by the court on finding fresh evidences.
Guidelines to be followed while providing anticipatory bail was discussed at length in the case of Gurbaksh Singh Sibbia v. State of Punjab3. In Sushila Aggarwal v. State (NCT of Delhi)4, the same was elaborated further by a five-judged Bench of the Hon’ble Supreme Court. These guidelines throw ample light as to what to be adhered to in order to make sure one succeeds in an anticipatory bail application.
Firstly, one has to make sure that it has to be made sure that the application on apprehension of arrest be based on concrete facts and not baseless allegations. The court considers the application after evaluating the gravity of the apprehension. Further, the nature of the anticipatory bail being to continue till the end of trial, the applicant should keep an eye on their conduct so that the Court doesn’t regret in its decision to grant the bail in the first place. The
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The principles of accusatorial legal system are evident in the interpretations to S.438 by the SC time and again. The personal liberty of an accused person guaranteed u/Art.20(3) and Art.21 are cardinal principles of criminal jurisprudence developed against the backdrop of cases like D K Basu v. State of West Bengal7. In fact, in the case of Badresh Bipinbai Seth v. State of Gujarat8 the Supreme Court had read S.438 along with Art.21, the verbatim being:
"The provision of anticipatory bail enshrined
in Section 438 of the Code is conceptualised
under Article 21 of the Constitution which relates to personal liberty.
Therefore, such a provision calls for liberal
interpretation of Section
438 of the Code in light of Article 21 of the Constitution”.
With these, the author is of the opinion that the provisions of anticipatory bail being rather applicant friendly, and with the rightful observations of the Hon’ble Supreme Court in cases including Satendra Kumar Antil v. Central Bureau of Investigation & Ors.9 and Hussain & Anr v. Union of India10 that bail applications need to be disposed in two weeks’ time, it is not cumbersome to be granted of one. However, the mandates have to be adhered including the genuineness of the case and assurance of not being a threat to the alleged victim, evidences or investigation to ensure the spirit of justice.
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6 For instance, S.438 stood omitted
in the State of Uttar Pradesh, for a long while ever since its State
Amendement in 1976. It was
only revived in 2018 with modifications.
7 (1997) 1 SCC 416.
8 2015 (3) AC R3013.
9 2022 I.C.O 1029.
10 (2017) 5 SCC 702.
