In India, article 21 of the Constitution provides for the ‘Right to Liberty’. This provides that one have a complete right of freedom and liberty and can roam freely and there are no restrictions to his/her movement. Section 438 of Criminal Procedure Code provides for Anticipatory Bail. A bail is the legal release of a person from the police custody on fulfillment of few conditions, one may be required to submit an absent of money as security or bond that the perso is being released on bail and will appear in the court proceedings. The motive of arresting a person is that the person appears in the court proceedings before the magistrate. So if the police and the court is satisfied that the person will appear in the proceedings, then the court may allow the person to be set free on bail as the motive of bail is also to confirm the appearance of the accused in court proceedings.
Section 436 of Criminal Procedure Code provides for the bail in bailable offences. Under this section, bail is the right of person and he/she can claim a bail as a matter of right. Section 437 & 439 of Criminal Procedure Code provides for bail is non-bailable offences. Under this section one can’t claim bail as a matter of right and it is completely upon the discretion of the court whether to provide the bail or not.
Section 438 of Criminal Procedure Code provides for Anticipatory bail. Under this section, if one apprehends that he/she can be arrested, then she/he can approach the court and avail an anticipatory bail.
Anticipatory bail means bail in the anticipation of an arrest. When a person apprehends that his reputation is in danger then in that case he/she can approach court and get an anticipatory bail in advance of any arrest. The grounds under which one can avail an anticipatory bail are:
1. Apprehension of imminent arrest.
2. Danger to reputation.
3. Arrest for ulterior motives such as humiliation.
4. It is a fit case for bail.
5. Petition before sessions court.
6. Physical presence before the court.
When any of above conditions are met one can file for an anticipatory bail. A bail application can be made in Sessions Court, High Court or Supreme Court. A pre-arrest bail can be taken in any case where a person apprehends that a false case is being made against him/her and there is grave danger to the life of family members. The Court will grant the bail/anticipatory bail only upon fulfillment of certain conditions i.e.
1. The person will not tamper any evidence.
2. The person will not try to abscond from India without courts permission.
3. The person will have to appear the court whenever he/she will be called for court proceedings.
4. The person will not try to influence any witnesses.
An anticipatory bail can be refused if it is found that the person is repeated offender, if the offence is a grave offence if the person do not comply with the conditions imposed by the courts.
The court can deny the anticipatory bail to a person upon any of the following conditions.
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