The Legal Nuances Surrounding Bail and Anticipatory Bail by Madhuparna Ray

1. THE LEGAL NUANCES SURROUNDING BAIL AND
ANTICIPATORY BAIL
MADHUPARNA RAY
4TH YEAR, 7TH SEMESTER, BBA LLB (HONS.)
121833201014

2. INTRODUCTION
 When an accused is arrested, his right to liberty is curbed to
a great extent.
 India follows the adversarial system of justice wherein the
chief motto is ‘Let ninety-nine criminals go free, but a single
innocent should not be convicted.’
 So, the fundamental belief of this system is an accused is to
be considered innocent unless proven guilty.
 Bail is, in fact, the freedom from this curtailment.
 This process of bail involves releasing the accused on a
provisional basis provided there exists specific collateral for
his appearance.

3. FORMS OF BAIL IN INDIAN LAW
There are mainly three forms of bail in India, which an accused can opt for based on the gravity of the crime. They are:
 1. Regular Bail: When a person is already kept in custody, he can opt for regular bail under Sec 437 and 439 of The Code of Criminal
Procedure, 1974.
 2. Interim Bail: An interim bail can be given to the accused by the Court for a short span of time. It is provided prior to hearing for the
grant of the regular or anticipatory bail.
 3. Anticipatory Bail: This is a unique form of bail mentioned under section 438 of The Code of Criminal Procedure, 1974. Once this bail
is granted to a person by the competent Court, he cannot be arrested by the police. It is also termed as pre-trial bail. It is given while there
is an expectation of arrest in the future.

4. PROCEDURE TO APPLY FOR BAIL
 Anticipatory Bail: If the accused is not yet arrested but anticipates that an FIR might be lodged against him, then
in such a case, he might engage a criminal lawyer in order to file an application for anticipatory bail.
 Regular Bail: In case the person is already taken into police custody, the lawyer files an application before the
competent Court (High Court or Sessions Court) by following the format as laid down under the Code of Criminal
Procedure. Once the application of bail is approved by the competent Court, it is then produced before the police
so that the accused can be released from police custody. The quantum of bail sum is dependent on the Court's
discretion. There exist specific fixed bail amounts for crimes of less severe magnitude.

5. CASE LAWS
 In Amia Kumar v. State of West Bengal, that sec 438 of the CrPC gives empowerment in the hands of the
Sessions Court as well as High Court to grant Anticipatory Bail. In case the Sessions Court rejects the application
for anticipatory bail, then the same cannot be applied before the High Court.
 But in the case of DR Naik v. the State of Maharashtra, a different stand was taken. It was held that if an
application for anticipatory bail is rejected by the Sessions Court, then it will not be a bar to apply for the same
before the High Court. But, if it was first used in the High Court, and if it gets rejected, then the application on the
same ground for anticipatory bail cannot be filed before the Sessions Court.

6. CRITERIA FOR BAIL IN BAILABLE OFFENCES
According to Sec. 436 of CrPC, any person who is accused of a bailable
offense as per the Indian Penal Code, 1860, has a right to get bail. Specific
criteria need to be fulfilled in order to get bail in bailable offenses. They are:
1. There is the existence of enough reasons to show that the accused was not
involved in the offense
2. That the offense at hand is not an offense that attracts a punishment of life
imprisonment or capital punishment or imprisonment of ten years of time
3. If the Court deems that the case at hand requires further investigation

7. CRITERIA FOR BAIL IN NON BAILABLE OFFENCES
Non-bailable offenses are offenses that are grave in nature and involve
punishment for a term of 3 years or more. According to sec 437 of the
CrPC, it is possible to get bail even in case of non-bailable offenses.
 The criteria are:
1. A non-bailable offense can bag an award of bail if the accused in question
is a child or a lady
2. If the case does not have sufficient substantial evidence to present before
the Court, then the Court may grant bail if it deemed fit.
3. When the complainant postpones lodging of an FIR.
4. In case the accused is suffering from a severe ailment
5. If there exists evidence that there is the rivalry between the complainant
and the accused

8. BAIL BY POLICE
 The authority to grant bail is given to the police officer in charge of the case,
too, apart from the Court. He has the power to grant bail to the accused taken
under his custody in two circumstances, namely:
1. In the case wherein the arrest was made without any warrant
2. In the situation where the arrest was made in pursuance of a warrant of arrest
 An officer- in-charge of the police station may grant bail only when
there are no reasonable grounds for believing that the accused has
committed a non- bailable offence or when the non-bailable offence
complained of is not punishable with death or life imprisonment.
 The power given to the police to grant bail in the 2nd case is controlled by the
directions given under Sec 71 of the CrPC.

9. ANTICIPATORY BAIL
 There was a significant upsurge in the concept
of anticipatory bail when cases were registered
wherein it was seen that the complaints
maliciously filed a false lawsuit in order to
character assassinate a person to fulfill a
personal vendetta.
 Justice Y.V. Chancrachud stated “A person who
has not lost his freedom yet, by being arrested,
can ask for his freedom in the future event of
arrest. That is the stage during which it is
essential to safeguard his freedom so as to give
honour to the presumption that he is innocent.”

10. CONDITIONS FOR ANTICIPATORY BAIL
The Court puts forth certain conditions while it grants
anticipatory bail to the accused. These strictures are:-
 First and foremost, the accused should be present as and
when he is summoned by the Court for the legal
proceedings.
 The accused would not intimidate or use coercive force
against the witnesses or various other persons related to
the case.
 The accused would not be allowed to cross the borders of
India.

11. CASE LAW
 Gurbaksh Singh Sibia v. State of Punjab, The Hon'ble Supreme Court held that "The difference between a
standard order for bail and an order for anticipatory bail is mainly that whereas the former is granted post-arrest
and hence means release from the police custody, the latter is granted due to anticipation of arrest and so is very
effective at the time of the arrest. Police custody is an inevitable part of arrest in the case of non-bailable offenses.
An order of anticipatory bail comprises an insurance against police custody following an arrest for offense or
offenses with regard to which the order is issued. So, unlike a post-arrest order of bail, it is a pre-arrest process
of law that directs that in the case wherein a person in whose favor the same issued is later on arrested on the
accusation due to which the direction is issued, he shall be released on bail.”

12. COMPARTIVE ANALYSIS : BAIL & ANTICIPATORY BAIL
1. The first and foremost difference between a regular bail and an anticipatory bail is that in the former, the accused is released
post-arrest, that is, from the custody of the police, whereas in the case of the latter, any person who has an apprehension of
being arrested might file an application for anticipatory bail and upon been granted will not be arrested. Hence, Regular bail is
a post-arrest legal process, whereas Anticipatory Bail is a pre-arrest legal process.
2. The legal provisions for regular bail are contained under sections 436, 437 of the CrPC, whereas the legal provisions for
anticipatory bail are contained under section 438 of the CrPC.
3. The concept of Anticipatory Bail is a newer concept as compared to the concept of Regular Bail as the CrPC of 1898 did not
contain the former idea but only had the latter. The former concept was introduced in the CrPC of 1973.
4. The power to grant Regular Bail is vested with any Judicial Magistrate or Court or the police officer-in-charge, but in the case
of Anticipatory Bail, it can only be granted by the High Court or Sessions Court.
5. When it comes to bailable offenses, it becomes a matter of right of the accused to be granted Regular Bail. In case of non-
bailable crimes, Regular Bail is given with the discretion of the Court, under section 437 of the CrPC. But in the case of
Anticipatory Bail, it is a power vested with only the High Court or Sessions Court for non-bailable offenses and must be
granted sparingly with the Court's discretionary authority.

13. CONCLUSION
 Hence, when it comes to criminal law, Bail and Anticipatory Bail are essential tools in the hands of the accused.
 These provisions of the Code of Criminal Procedure show that law is unbiased, and an accused shall always be
considered innocent unless proven guilty as per the adversarial mode of justice system prevalent in India.
 Therefore, these concepts of bail and anticipatory bail works as a safeguard for the accused and also show that if
one is on the right side of the law, then he need not fear as justice will be served.