The Indian justice system provides a safeguard for individuals accused of crimes through the provision of bail. Recently, this system has gained attention in the news as an MLA received pre-arrest or anticipatory bail from the High Court. This decision was later challenged by the state Lokayukta in the Supreme Court.
Understanding the Concept of Bail
Bail is a conditional release of an individual who is in legal custody and whose case is still under consideration by the court. The person granted bail must appear before the court as required and often has to offer a form of collateral as a security deposit. The principle behind granting bail was explained in the Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973) case by the Calcutta High Court.
There are three types of bail in India: Regular Bail for individuals already under arrest, Interim Bail granted for temporary periods, and Anticipatory Bail for individuals who anticipate being arrested.
Exploring the Different Types of Bail
Regular Bail is granted by any court in the country to release a person who has already been arrested and is in police custody. Applications for such bail relate to Section 437 and 439 of the CrPC.
Interim Bail refers to temporary bail granted until the application for Anticipatory or Regular Bail is pending before the court.
Anticipatory Bail or Pre-arrest bail, outlined under section 438 of the Code of Criminal Procedure, 1973, is a legal provision that permits an accused person to apply for bail before an arrest. Issued solely by the Sessions Court and High Court, this type of bail is discretionary, and various factors are considered before granting it.
Legal Interpretations of Pre-Arrest Bail
The Supreme Court of India reserves the right to grant pre-arrest bail only in exceptional cases. This position was upheld in various rulings, such as Gurbaksh Singh Sibbia vs State of Punjab (1980), Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995), SS Mhetre vs State of Maharashtra & Ors (2010), and Sushila Aggarwal and others v. State (NCT of Delhi) (2020).
Conditions for Granting Anticipatory Bail in India
Anticipatory bail is granted under certain conditions. The individual must believe they may be arrested for a non-bailable offense. A monetary bond may be imposed, which is to be paid if the person fails to appear before the court or violates bail conditions. The individual must also make themselves available for interrogation by the investigating officer. The court may also limit the bail period, requiring the person to surrender to custody once the period expires.
Grounds for Cancelling Anticipatory Bail
Under Sections 437(5) and 439 of CrPC, anticipatory bail can be revoked. These sections imply that the court granting anticipatory bail can also cancel it upon appropriate consideration of facts. An application from the complainant or prosecution may lead to the arrest and custody of an individual previously released on bail. However, police officers do not have the authority to cancel granted bail.
Over time, anticipatory bail, as provided under Section 438 of CrPC, has served as protection against false accusations or charges. It ensures the release of such falsely accused persons even before they are arrested.
Overall, pre-arrest bail is a critical legal provision in India, safeguarding individuals’ fundamental rights. In deciding whether to grant bail, courts consider several factors including the nature and gravity of the offense, the history of the accused and other relevant factors. The Supreme Court of India has established guidelines for granting pre-arrest bail, requiring careful analysis of these factors.
