INTRODUCTION:
Bail refers to the temporary release of the accused from custody. It happens pertaining to the condition that he will provide a surety or a bond ensuring they will appear in the Court trial or co-operate in any other legal proceedings. This legal provision which refrain from unnecessary detention also ensures that the accused should not interfere or trouble the investigation.
BACKGROUND:
Concept of bail has evolved in India over time to maintain balance between individual liberties aligning with societal interest. It emerged from the English common law and is incorporated into Indian legal jurisprudence.
i. The first introduction to bail was found in British India under the Code of Criminal Procedure, 1861; allowing Courts to grant bail pertaining to few conditions.
ii. The Criminal Procedure Code, 1898 refined the bail provisions and categorized those into bailable and non-bail able offenses.
iii. The Criminal Procedure Code,1973 which is in force in recent times made changes for the enforcement of fair and just procedures for bail.
LEGAL PROVISIONS RELATING TO BAIL:
I. Section 436 states bail in bailable offenses that the accused has the right to bail.
II. Section 437 states bail in non-bail able offenses(Court’s discretion).
III. Section 438 states anticipatory bail for individuals fearing arrest.
IV. Section 439 states power of High Court and Sessions Court to grant bail.
V. Section 167(2) states default bail; if the investigation cannot be completed within the prescribed time.
CONSTITUTION OF INDIA:
States that bail is considered as a fundamental right under Article 21 that is Right to Life and Liberty.
Implements safeguard measures in protection against arbitrary arrest and detention.
TYPES OF BAIL:
I. Regular Bail-granted to a person who has already been arrested and is in judicial custody. Applied under Section 437 and Section 439 of Criminal Procedure Code, 1973.
II. Anticipatory Bail-granted before arrest; the situation when a person fears being detained in a non-bail able offense. Applied under Section 437 of the Criminal Procedure Code, 1973.
III. Interim Bail-a temporary bail permitted over a short time period.
IV. Default Bail-granted when police unable complete investigation over a stipulated time that is sixty or ninety days depending on the case under Section 167(2) of the Criminal Procedure Code,1973.
DIFFERENCE BETWEEN BAIL ABLE AND NON-BAIL ABLE PFFENSES:
I. In Bailable Offenses such as minor threats or defamation cases the accused gets the right to bail and the police or the magistrate must grant it.
II. Whereas, Non-bail able Offenses such as murder, rape, kidnapping bail is strictly prohibited and no police or magistrate must grant bail to such accused.
ANTICIPATORY BAIL:
It is required when a person fears arrest due to non-bail-able offense.
KEY FACTORS AFFECTING ANTICIPATORY BAIL:
I. False Allegations-when someone anticipates being falsely accused of a crime.
II. Political or Personal reason-when an individual is targeted for political or personal reasons.
III. Business or Property Disputes-giving rise to legal conflicts leading to criminal cases.
IV. Family Disputes-for example dowry harassment matters; anticipatory bail is sought in matrimonial cases.
V. Pending Investigation-when police arrest the accused during the interrogation.
STEPS TO APPLY FOR ANTICIPATORY BAIL:
1. STEP-I:
File the Application
The accused needs to file the anticipatory bail application under section 438 of the Criminal Procedure Code, 1973.
2. STEP-II:
The application contents-
● FIR details if registered.
● Grounds to seek anticipatory bail.
● Reasons behind fear of arrest.
● Complying with the investigation process.
3. STEP-III:
● The Court issued notice to the police and the Complainant to present an argument.
● Objection may arise from the prosecution against the bail.
● The Court examines whether the case is fit for anticipatory bail.
4. STEP-IV:
Court’s Decision
If granted for anticipatory bail then the court may impose certain conditions:-
● Surrendering the passport.
● Complying with the investigation process.
● Not leaving jurisdiction without permission.
CONDITIONS OF ANTICIPATORY BAIL:
i. This bail is not granted automatically; the severity of the offense is verified.
ii. Not granted for serious crimes such as murder, rape or terrorism.
PRIMARY LANDMARK CASE IN INDIA RELATING TO ANTICIPATORY BAIL:
The first ever landmark case in India that has shaped the concept of Anticipatory Bail under Section 438 of the Criminal Procedure Code, 1937 was-
Gurbaksh Singh vs. State of Punjab (1980)
BACKGROUND-
i. Gurbaksh Singh Sibbia, former minister of Punjab Government was accused of corruption. He applied for anticipatory bail by fearing arrest on political grounds under section 438 of Criminal Procedure Code, 1973 before the Punjab High Court and Haryana High Court.
ii. The High Court rejected his applications, stating anticipatory bail is provided to exceptional cases only.
iii. He appealed to the Supreme Court which overruled the High Court.
JUDGEMENT-
1. Anticipatory bail as Constitutional safeguard to individuals from unnecessary harassment and false detention.
2. No condition of exceptional cases stated by the High Court view that anticipatory bail is granted to few or rare cases were incorrect.
3. Judicial direction is key that the cases must be judged by its facts and circumstances.
4. Conditions may impose that courts can impose conditions while granting anticipatory bail.
5. The case formed the legal boundaries for anticipatory bail in India.
FREQUENTLY ASKED QUESTIONS(FAQS) ON ANTICIPATORY BAIL:
1. Who can apply for Anticipatory Bail?
Any individual who anticipates arrest in non-bail able offense can apply for such bail. This includes people who are falsely accused or facing politically or personal charges.

2. Where to apply for Anticipatory Bail?
● Sessions Court at the initial level.
● High Court if the bail is rejected by Sessions Court.

3. Can Anticipatory Bail be rejected?
Yes, the Court can reject the application of:-
● The charges are serious and well-found.
● The accused has a
● criminal history.
● The Court finds the application misleading.

4. Can Anticipatory Bail be cancelled?
If rejected by the Sessions Court then one can approach the High Court and if needed to the Supreme Court as well.

5. Is there a time limit for Anticipatory Bail?
The court may specify a time limit or continue till the trial is completed.

6. Can Anticipatory Bail be applied before an FIR is registered?
Yes, Anticipatory bail can be applied before an FIR that is First Information Report is registered as long as there lies reasonable apprehension of arrest based on credible information.

7. Can the Police arrest a person after Anticipatory Bail is granted?
No, once such bail is granted, the police cannot arrest the particular individual unless they violate conditions set up by the Court or if the bail gets canceled by the Court.
8. Is Anticipatory Bail available for all types of Criminal Offences?
No, such bail is only applicable for non-bail-able offenses. It is generally not granted for:-
● Serious offenses such as murder.
● In rape cases.
● Certain cases under special laws.

9. Can Anticipatory Bail be granted for multiple people in case?
Yes, multiple people who are accused can apply for such bail if they believe to be at risk in the similar case.
10. Can Anticipatory Bail be granted in cases of Economic Offenses?
Yes, but caution remains over the Courts while granting such bail in cases like fraud, money laundering, tax and evasion.

CONCLUSION:
Anticipatory Bail plays a crucial role in balancing individual liberty with interests of justice. It is granted to prevent mis-use of this provision by the actual offender. It ensures that justice prevails while refraining the ill-use of the legal provision. Online Legal Query here has participated to help the aggrieved through the experienced senior advocates and legal team to be able to guide in the proper path to meet with their ultimate fairness.
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