Last Updated on June 20, 2024 by Satish Mishra
Section 438 of the Code of Criminal Procedure lays down the provisions for Anticipatory Bail. Bail means temporary release of an accused person awaiting trial on payment of bail, defined as Security such as cash, a bond, or property, pledged or given to a court by or on behalf of one accused of committing a crime, to obtain release to ensure the person’s future appearance in court when required during the criminal proceeding.
The provisions regarding the release of the accused person on bail are aimed at ensuring the presence of accused at his trial.
There is no definition of bail in the Code, although the terms “bailable offense” and “non-bail able offense” been defined in Section 2A of the Code.
Also Read- IN WHAT CASES BAIL CAN BE CANCELLED?
Following are the types of Bail
The Constitution of India has introduced one basic rule with the law as Bail and not Jail. This ensures that anyone who is accused of Civil or Criminal offense has the right to apply for Bail. Its exception includes if the said or accused is a repeat offense maker or there is a possibility of the fleeing away from justice, or the crime is grave enough.
There are different categories of bails applicable depending upon the type of charges.
- Interim Bail: It is for a certain period of time granted before hearing to the prosecution.
- Permanent Bail: It is permanent in nature and granted only after hearing to the petitioner a well as the prosecution.
- Bail Before Arrest: It is granted when the court feels that the accused is falsely involved in the case and an arrest would affect his honor and dignity badly.
- Bail on Arrest: It is covered under Section 497 of Cr. P.C., Bail can be granted for both bailable as well as non-bail able offenses after the accused is arrested against a charge.
- Protective Bail: A bail granted so that the accused can approach the provincial court for getting a pre-arrest bail without touching its merit.
- Directly Approaching Superior Court: the Superior Courts can grant pre-arrest bail in some appropriate cases directly if the accused has been deprived or prevented from approaching lower courts.
- Bail For The Convict: Once convicted, bail is granted to the accused even if the appeal for the same is accepted if the court finds that there are considerable grounds for his/her release.
- Anticipatory Bail: It is a legal relief that a person may be entitled to in order to get temporary freedom until his case is disposed of. Depending on the gravity of the allegations, a person may be able to avoid arrest altogether.
Also Read- ANTICIPATORY BAIL FROM HIGH COURT
Application of Anticipatory Bail
Anticipatory bail is applied in anticipation of arrest. It is a direction to release a person on bail even before the person is arrested. If the accused has a reason to believe that he or she may be arrested then he or she has the right to apply for anticipatory bail in the Sessions Court or High Court.
However, in a case, the Supreme Court of India held that an accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-sheet within 60 days of his arrest for the offense.
Also Read- ANTICIPATORY BAIL BASICS
The following case deals with a similar section:
Facts of the case:
- Additional sessions judge Monica Goyal rejected the anticipatory bail plea of Akali leader Dyal Singh Kolianwali after the Punjab Vigilance Bureau opposed it.
- The vigilance has added Sections 467 (forgery of valuable security, will etc.) and 468 (forgery for purpose of cheating) of the IPC after investigations revealed he had cheated people.
- Kolianwali had filed the plea for anticipatory bail apprehending arrest under these new sections.
- Previously, the court had granted him bail on technical grounds since the VB had not been able to file a challan in the disproportionate assets case against him within 60 days.
- Opposing the bail plea, the vigilance had submitted that they had not been able to file a challan against him within 60 days considering the extent of the charges against him.
Also Read- APPREHENSION OF ARREST: GET AN ANTICIPATORY BAIL.
According to Section 167(2) in The Code Of Criminal Procedure, 1973
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Also Read- APPLY FOR BAIL BUT WHEN AND HOW?
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