As the word anticipatory itself means in anticipation an anticipatory bail means a bail in anticipation of an arrest in case of a cognizable offence or a non- bailable offence . In other words it’s a bail that may be granted when there is an anticipation that there could be an arrest when one is being accused of having committed a non bailable offence.
Under Article 21 of the constitution of India the right to life and personal liberty is guaranteed to every citizen which is an extremely important right . Section 438 of the Criminal Procedure Code 1973 is a provision to seek anticipatory bail.
The Hon’ble Supreme Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013) has held that
“when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”.
Who can apply for an anticipatory bail?
It is very rare that a pre arrest bail is rejected and it is rejected only when it is urgently required that the accused is required to be interrogated in custody .
The Supreme Court in case titled Siddharam Satlingappa Mhetre Vs. State of Maharashtra (2011) 1 SCC 694 has held as under
“111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their 5 long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour”.
Courts Consideration before Granting Anticipatory Bail
Courts before granting an anticipatory bail would look into the nature of offence and also the past antecedents of the accused person named in FIR and also is there is any possibility that he would disengage himself or abscond from being available In the administration of justice and if on an application made by the Public prosecutor in the interest of justice that the accused be present in court for final hearing he will have to be present in court and that would be obligatory.
Conclusion
Also also known as a Pre-arrest Bail. section 438 of the Code of Criminal Procedure, 1973 gives liberty to an accused to file for bail prior to his arrest and such applications can be filed before the Sessions court and also in the High Court. In most cases courts are inclined to grant anticipatory bail however which are placed before it however it all depends on the gravity of the offence and therefore the Courts have the discretion to grant anticipatory bail or not. The facts and circumstances of a case would depend on that.
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