Direction for Grant of Bail - CRPC 438
Date : 24 Aug, 2021
Post By Bhupender Tanwar
The requirements of Anticipatory Bail are found Under Section 438 of the Code of Criminal Procedure of 1973. In the code, the term "anticipatory bail" is not as defined in the code. The term "anticipatory bail" is an inapplicable title, because the order only takes effect when the defendant is arrested. Background The evolution of preventive bail: Before we go into the laws of Instantaneous Bail/Pre-Arrest Bail, it's vital to know a little bit about the history of bail and how it came to be the way it is now. Bail has its origins in medieval times when King John of England issued the first known drafted constitution, which is now known as "Magna Carta." "No free person shall be seized or imprisoned of his rights or possessions, or outlawed or exiled, or deprived of his having to stand in any other way, nor will we continue with force against him or send others to do, lawful judgment is an exception of his equal or by the law of the kingdom," according to Magna Carta clause 39. A close reading of this line indicates that a person cannot be restricted or detained until and until a final judgment in accordance with the laws of the land is rendered. A thorough examination and decoding of this paragraph indicate a close link to the Cr.bail P.C.'s requirements. The old Cr.P.C. of 1898 did not allow for an anticipatory bail or pre-arrest bail. Anticipatory bail or pre-arrest bail was first proposed to Parliament in the 41st Law Commission report, after which it was included in Chapter 33 of the new Cr.P.C. 1973 under section 438 Consult the best lawyer online Legal provision: “Direction for the issuance of bail to a person who is under suspicion of being arrested” If a person has reason to believe that he may be arrested on accusations of committing an offence that is non-bailable in nature, he may seek application either to the High Court or the Court of Session for a direction under this section that he be released on bail if he is arrested; and that Court may, after considering, among other things, The nature and gravity of the alleged offence, issue such a direction. The applicant's background, particularly whether he has ever been imprisoned for a cognizable offence after being found guilty by a court. The applicant's ability to elude justice, as well as If the charge is made with the intent to injure or humiliate the applicant by having him arrested, either reject the application immediately or issue an interim order granting anticipatory bail. If the High Court or, as when the case may be, the Court of Session has not issued an interim order under such a Subsection or has rejected an application for anticipatory bail, a police officer on duty of a police station may arrest the applicant without a warrant based on the allegations made in the application.
Reason for requirement of anticipatory bail: When an individual has a reasonable fear of it being arrested for offence which is non - bailable, they can seek “anticipatory bail” from the High Court or the Court of Sessions, as stated in Section 438 of the Code. Consider Mr. A's marriage to Ms. W. Following their marriage, their relationship became rocky. Ms. W then filed the complaint against him under Section 489(A) of the Crpc 1973. He petitioned the court for "anticipatory bail" because he was concerned he might be arrested. Difference between Bail and Anticipatory Bail: The Supreme Court ruled in Gurbaksh Singh Sibbia v. Punjab “There is a difference between an ordinary order of bail and an anticipatory order of bail is that the former is issued after arrest and so entails release from police custody, whilst the latter is granted before arrest and thus takes effect at the time of the arrest. Arrests for non-bailable offences are nearly always followed by police detention. An anticipatory bail order acts as a kind of insurance against police detention in the event of an arrest for the offence or offences for which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest judicial process that directs the individual in whose favor it is made to be freed on the bond if he is later arrested on the accusation for which the directive is granted.” Get in touch with the best lawyer online Judgment: Siddharam Satlingaapa Mhetre V. state of Maharastra and others,2010: Anticipatory bail was not specifically mentioned in the Code of Criminal Procedure of 1898. Under the old Code, there was a sharp divide of opinion among the several High Courts as to whether the courts had an inherent power to issue a bail order in anticipation of arrest, with the overwhelming majority of opinions stating that they did not. The Law Commission of India stressed the significance of incorporating a provision in the Code of Criminal Procedure that empowers the High Court and Court of Session to give "anticipatory bail" in its 41st Report, which was published on September 24, 1969. "Anticipatory bail is 39.9% of the total bail amount," it stated in paragraph 39.9 of its Report (Vol. V). The notion of ordering a person on bail to be released prior to his arrest was thoroughly considered (often referred to as "anticipatory bail"). This tendency has been steadily increasing in recent years, as the political rivalry has intensified. Apart from false cases in which there are reasonable grounds to believe that a person charged with an offence will not abscond or otherwise abuse his liberty while on bail, there appears to be no justification to require him to first submit to custody, remain in prison for a few days, and then apply for bail." Conclusion: Anticipatory Bail was included to the Code in order to protect a person's right to personal liberty. No one can be arbitrarily detained or deprived of their personal liberty. However, the Courts must exercise extreme caution when granting it in order to avoid abuse of this particular privilege. Through a series of decisions, the Hon'ble Supreme Court of India has emphasized this fact numerous times. Anticipatory bail is a means for ensuring an individual's liberty; it is neither a license to commit crimes or a defence to any and all charges, credible or not.
