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bail In simple terms "Anticipatory bail" means, "bail in
anticipation of arrest". Section 438 of Criminal Procedure
Code states as follows;
1. When any person has reason to believe that he
may be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the
Court of Session for a direction under this section, and
that Court may, if it thinks fit, direct that in the event
of such arrest he shall be released on bail.
2. When the High Court or the Court of Sessions makes
a direction under sub-section (1), it may include such conditions
in such directions in the light of the facts of the particular
case, as it may think fit, including-
(a) a condition that the person shall make himself available
for interrogation by a police officer as and when required;
(b) a condition that the person shall not, directly or indirectly,
make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;
(c) a condition that the person shall not leave India without
the previous permission of the Court.
(d) such other condition as may be imposed.
If such person is thereafter arrested without warrant by
an officer-in-charge of a police station on such accusation,
and is prepared either at the time of arrest or at any time
while in the custody of such officer to give bail, he shall
be released on bail. If a Magistrate taking cognizance of
such offence decides that a warrant should issue in the
first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the Court.
should be noted that where the High Court or Court of Sessions
has not passed any interim order under this section or has
rejected the application for grant of anticipatory bail,
it shall be open to an officer in charge of a police station
to arrest, without warrant the applicant on the basis of
the accusation apprehended in such application.
anticipatory bail can not be granted after a Magistrate
has issued warrant. The presence of the applicant seeking
anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by
the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary
in the interest of justice.
Anticipatory bail orders should be of a limited duration
only and ordinarily on the expiry of that duration the Court
granting anticipatory bail should leave it to the regular
Court to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progress
or the charge-sheet is submitted.
bail can not be granted in all cases as a matter of course.
The exercise of power has to be invoked in exceptional case
only. While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors, namely,
no prejudice should be caused to the free and full investigation
and there should be prevention of harassment and unjustified
detention of the accused.
bail can not be granted as a matter of right. Applicant
can approach High Court for grant of anticipatory bail even
if his application is rejected by the Court of Sessions,
but not vice versa. Where a matter of dowry death is under
investigation it is not prudent for High Court to grant
anticipatory bail. If the application for anticipatory bail
is rejected the second application is not barred.
Books referred: Code of Criminal Procedure, 1973.
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