Anticipatory bail (ab)

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1) Section 438 of the Criminal Procedure Code allows individuals to apply for anticipatory bail if they believe they may be arrested for a non-bailable offense. 2) The High Court or Court of Session has jurisdiction to grant anticipatory bail and may impose conditions to ensure justice and prevent obstruction. 3) Courts have wide discretion in deciding anticipatory bail applications on a case by case basis due to the impossibility of laying down rules for all possible cases.

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Abstract The denial of bail for an indefinite period impinges on fundament rights. The prisoner must not be punished before conviction. Granting of bail always rings for the conflicting interest between liberty of an individual and interest of the society. The Principle underlying release on bail is that an accused person is presumed in law to be innocent until his guild is proved beyond reasonable doubt and as a presumably innocent person; he is entitled to freedom and every opportunity to look after his case, provided his attendance is secured by proper security. The other object of the release of a person on bail is to secure the presence of the person charged with crime at his trial or at any other time when his presence may lawfully be required and to force him to submit to the jurisdiction and punishment imposed by the Court. The normal rule is bail and not jail. Again at various occasions, Hon’ble Supreme Court and several High Courts reiterated that ‘the grant of bail is a rule and refusal to bail is an exception. The significance and sweep of Article 21 make the deprivation of liberty a matter of concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Grant of bail by the Court is a discretionary order. However, this discretion shall be exercised in judicial manner and not as a matter of course. The order denying the bail shall provide cogent reasons of rejection. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

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