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Criminal Defense & Obtaining Anticipatory Bail: Lawyers Advice

 > Anticipatory Bail & Regular Bail  > Criminal Defense & Obtaining Anticipatory Bail: Lawyers Advice

Criminal Defense & Obtaining Anticipatory Bail: Lawyers Advice

Under the criminal law it is the Court has the discretion to grant Anticipatory Bail, to any person or an accused person who is apprehending an arrest for any Non-Bailable offence in near future by the virtue of Section 438 of the Cr. P.C. The discretion to grant bail, in this case, is entirely cast upon the Court since the Code does not specifically enumerate any condition, under which Anticipatory Bail can be granted. The accused can submit an Anticipatory Bail Application before the Sessions Court or the High Court. The High Court or the Sessions Court has to apply its rationale, in deciding whether a genuine case is made out of granting this relief. As per the Application under Section 438 of the Cr. P.C, the Applicant promises to abide by certain conditions and restrictions, that the Court may impose during the period of being out on bail.

The extent and reasonableness of the threat, its gravity or seriousness, and the appropriateness of any condition that may have to be imposed are taken into consideration at the time of reviewing the Bail Application (Deepti Bahal vs State Of U.P, Criminal Miscellaneous Anticipatory Bail Application No. 8606 of 2020). The Application should be based on concrete facts relating to the specifics of the offence, along with the reasons, as to why he is apprehending an arrest. The person/accused has to convince the Court that a false FIR has been filed against him which is based on unsubstantiated facts. However, the Supreme Court has clarified that the filing of an FIR does not stand as a precondition to exercising the power vested under Section 438. The Court can grant Anticipatory bail to the accused, even after the filing of the FIR, as long as the accused has not been arrested. (Maneka Gandhi Vs. Union Of India, AIR 1978 SC 597).

The life of the Anticipatory Bail is not based on a specific time period that ends at the stage when the accused is summoned to the Court or concrete charges are being framed. The bail can continue till the end of the trial and that the Court is open to limit the tenure depending upon the peculiarities of the case. (Ushila Aggarwal Vs. State, NCT of Delhi, Special Leave Petition No. 7281¬7282/2017). The Courts may consider the severeness of the offense in question, the reputation of the accused in society, and most importantly his likelihood of influencing the investigation process or fleeing away from the Country and then accordingly impose restrictions on the accused.

The applicant in his application has to undertake to appear before the police or the Magistrate as and when it desires and take prior permission from the Court’s before traveling somewhere within or outside the country. The Anticipatory Bail Application should be signed by the accused. It is crucial to inform the Court, whether it is the first anticipatory bail application or if any anticipatory Bail Applications have been filed earlier, and in case of prior Applications, a copy of those applications have to be filed in the Court as well. Additionally, a copy of the FIR, Vakalatnama, or the power of attorney along with the Court fees and an Affidavit in support is essential for filing the anticipatory bail.

Anticipatory Bail was engraved in Section 438, to ensure and protect the personal liberty of the individuals. Even though the Courts can impose restrictive conditions on the accused, the Courts must impose restrictions after giving due considerations to the seriousness of the crime and the antecedent of the accused (Salauddin Abdulsamad Shaikh v. the State of Maharashtra, 1996 AIR 1042). The personal liberty of the accused should not be whittled down by imposing unnecessary restrictions that lacks any relatedness with the machinery of the law. While, since there exists no specific provision for anticipatory bail, the respective High Court or the Sessions Court also have the discretion to even cancel the bail order to meet the ends of justice. The criminal law with respect to the bail and the reasonable restrictions imposed by the Courts where the bail is granted including the criminal defenses and the grounds taken while presenting the bail application is somewhat not that straight to decipher. The criminal defenses vary from case to case and to a given extent is dependent upon the contents of the criminal complaint including the accusations levelled and the evidences in support thereof.
Authored By: Adv. Anant Sharma & Lopamudra Mahapatra

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