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Anticipatory Bail Basics

Anticipatory Lawyers Chandigarh

The word bail stands for a conditional release of an accused on trial which is usually temporary in nature. It is a right given to accused in order to give them a chance to live a regular life even when they are under trial. It is a right given in common law system to ensure fairness to all the parties and it is so because when a person is in trial they can remain in judicial custody or police custody.


In India as we all know that legal burden on courts are so much that sometimes to resolve a small pecuniary suit even it takes years in pleading so we could just imagine the situation of serious crime offenders or accused who are trialed for years which hampers their social image & status to an irrecoverable point & after so much trouble being faced if they are found innocent then it becomes a problem for these under trials to start afresh  or to pace up with the advanced world which changes a lot over a period.

Also Read- Bail, Anticipatory Bail, Regular Bail, Interim Bail in Chandigarh

There is a legal maxim Ubi jus ibi remedium which means “where there is wrong there is a remedy in law” however section 438 of CrPC states ‘direction for grant of bail to person apprehending arrest’ which not in sync with the maxim gives the provision of remedy for only the apprehension of commission of wrong which means that a person may just ask for bail from court only on the mere apprehension of arrest or custodial inquiry which may work as an anchor in the sails of justice & law as such a provision of law hinders in the investigation of crime as prime accused may just evade from legal procedure by taking an anticipatory bail as without taking in custody police may not able to legally interrogate the accused leading in weakening of prosecutrix side it leaves a dilemma even for courts as if in the provision there is no explanation on the limit of the bail under 438 CrPC therefore it may lead to evasion from justice same has been discussed in Sushila Aggarwal vs. State(NCT Delhi) [1]  it has been raised in the court on 2 divergent views on anticipatory bail that

1 whether there should be a time barred protection on bail protection under 438 giving sufficient time to accused to apply for regular bail under the authoritative court or not.

2 whether term or life of the anticipatory bail should end at the time of summon to accused by court.

Also Read- Transfer of a Criminal Case from High Court Chandigarh

It is a legal right of every citizen to move an application for bail which needs to be properly examined by high courts & Supreme Court. Also in case of Prem Giri vs. state of Rajasthan[2]  it was decided by the court that no bail application needs to be dismissed without a proper reason & order by the court so it would be also seen in the same manner only.

Also Read- How to Quash FIR in Chandigarh at High Court.

According to our legal forefathers who enacted these laws had a view that no innocent should be deprived of their rights even if it leads to failure of legal mechanism to prosecute the actual offender. However, it is equally important that we take stringent explanations of provisions & even amend them if needed to ensure that justice prevails always.

 In last it could be said for conclusion that it is the right of every man to get protection from wrongful confinement & right to live with liberty unless taken by proper procedure of law. However equal check should be regularly kept on absconder’s of law to ensure safe & secure society to live in.

This post is written by Dishant Karnawat student of BBA LL.B (Hons) 2014-2019 ICFAI Dehradun. For any subject specific advice, please dial 99888-17966.  

[1] Supreme court SLP cr. No. 7281-82/2017

[2] Supreme court Cr appeal no.662/2018

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