Supreme Court Settles The Law on Anticipatory Bail

Before I inform my dear readers about the captioned development, I must explain to them what is anticipatory bail in the first place. Law provides for curtailment of liberty by way of arrest in certain prescribed scenarios. Bail is the security that a person is directed to give to the Court / releasing authority in lieu of the conditional freedom he is granted from such curtailment. Bail may be granted with or without surety (guarantor). Now this naturally means that the question of bail arises only when a person is in custody and he seeks to get out of the same. But in case of anticipatory bail, a person applies for bail, even before he is arrested, in anticipation of such arrest. The relevant provision of law is laid down in Section 438 of our Code of Criminal Procedure. It basically says that whenever a person apprehends or has reasons to believe that he is likely to be arrested on suspicion of him having committed a non bailable offence then he can apply either to the Court of Sessions or to the High Court, for issuing a direction that in the event of his arrest he shall be released on bail. Then the concerned Court, after taking into consideration the facts and circumstances of that case, may decide accordingly.  It needs to be understood that this provision exists to prevent so far as possible malicious arrests and frivolous detention which are politically motivated either to humiliate or to injure the reputation of the concerned person.

A Court while considering an application for anticipatory bail usually weighs the following factors:-

• the nature and gravity or seriousness of the accusation as apprehended by the applicant
• the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence 
• whether motive behind the accusation is to humiliate or malign the reputation of the applicant by having him arrested 

Yesterday the Hon'ble Apex Court has settled a long debated issue as to whether anticipatory bail should or should not be granted to absconders and persons who flee beyond the reach of the investigative agency even before their arrest. The Hon'ble Court held that no court should grant anticipatory bail to a person who had been declared an absconder either during the investigation or during the trial.

Writing the judgment for the bench, Justice Sathasivam agreed with the proposition of additional solicitor general Siddharth Luthra and said, "We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and is declared as a proclaimed offender in terms of Section 82 of the Criminal Procedure Code, is not entitled to the relief of anticipatory bail."  The case related to the alleged suicide of Vibha in her in-law's house in Punjabi Bagh, New Delhi, on September 1 last year. She was married on January 19, 2010. The bench said the allegations levelled against the accused persons, including the husband's brother, was that they subjected Vibha to cruelty demanding sizeable amount in order to settle the payment of Rs 5 lakh for the flat allotted by Delhi Development Authority.






*Information Courtesy - The Times Of India

Did You Know ?

The rights of a person who is arrested : -

Every Police Officer making an arrest shall facilitate his own identification to the person who is being arrested.

He shall prepare a memorandum of arrest which shall contain the signatures (attestation) of :

                           

i) The person arrested and


ii) One witness who is either a family member of the arrested person or a respectable

person of his locality where his arrest is made



If the memo is not attested by his family member then the Police shall inform him of his right to have his relative or friend informed of the arrest.

The person arrested shall be informed of the grounds of his arrest.

If any article is found in the possession of the arrested person, upon his search after arrest, then the same, except the necessary wearing apparels, shall be kept in safe custody by the Police. If those articles are shown to be seized by Police, then Police shall prepare a receipt of the same and give it to the arrested person.

A female's person shall be searched only and only by a female Police officer with strict regard to decency.

When a person is arrested on the grounds of commission of such offence (s) whereupon his / her medical examination is likely to afford evidence regarding commission of that offence then he / she shall be subjected to such medical examination by a registered medical practitioner as is reasonably necessary for finding such evidence. When a female has to be medically examined then it shall be done only by or under the supervision of a female registered medical practitioner.

Every time a person is arrested, he shall be be forthwith submitted for medical examination by a Govt. medical officer (doctor) and in his absence any other registered medical practitioner. The same rule as above shall apply for medical examination of a female.

The report (often called the medical report / injury report) of such examination in both the abovementioned cases shall be furnished to the arrested person.

When any person is arrested and interrogated by the Police then he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.

The arrested person has to be produced before the nearest Magistrate within twenty four hours of his arrest.

The Police shall actually touch or confine the body of the person arrested while arresting him, unless he himself submits to the custody of the Police. If the person arrested is a female then only a female Police Officer shall touch or confine her body, except when circumstances require otherwise.

Except under exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where any exceptional circumstances exist, the woman Police Officer shall obtain the prior permission of a Judicial Magistrate of the First Class within whose jurisdiction the offence is committed or the arrest is to be made.

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

It shall be the duty of the Police officer in whose custody the arrested person remains to take all reasonable care of his health and safety.



(The aforestated information only covers the fundamental and basic rules governing arrest of individuals. It is only a part of the detailed law as prescribed under Chapter V titled "Arrest of Persons", in the Code of Criminal Procedure, which though includes but is not limited to the abovementioned information. Readers are advised to consult a lawyer or refer to the relevant provisions of law in case of any need.)