PROJECT REPORT ON
DRAFTING
TOPIC– REGULAR AND ANTICIPATORY BAIL
SUBMITTED TO:- SUBMITTED BY:-
MR. VIVEK ARORA LOVISH SINGLA
(DEPARTMENT OF LAWS) LLB. 3RD SEM
PUNJAB UNIVERSITY ROLL NO.- 92/23
CHANDIGARH SECTION - H
ACKNOWLEDGEMENT
I would like to express my sincere thanks of
gratitude to MR. VIVEK ARORA who gave me
this wonderful opportunity to present this topic
of DRAFTING i.e., Regular and anticipatory
bail.
This also helped me in reading and researching
about my topic and I came across so many new
things for which I am very grateful.
I hereby acknowledge my mentor for her expert
guidance and views in each and every aspect of
my topic.
CONTENT
S.NO. TOPIC PAGE NO.
1. INTRODUCTION 1
2. 1-8
3. 9
4. 9-10
5. 10-11
6. 11-12
INTRODUCTION
"Every criminal offence is an offence against the state; thus, society
has a crucial stake in whether bail is granted or denied. The sanctity of
individual liberty and the interests of society must be perfectly
balanced in the decision on whether to grant or deny bail."
* Justice Dalveer Bhandari in S.S. Mhetre v. State of Maharashtra
(2010)
The term "bail" may be traced back to the old French word "Baillier".
Its true meaning is to deliver or hand over. The term "bail" is not
defined in India's Criminal Procedure Code, 1973 (CrC). Black's Law
Dictionary describes bail as a security such as money or bond,
especially required by a court for the release of a prisoner who must
appear at a u date. In the case of Kamlapati v. State of West Bengal
(1978), the Supreme Court defined bail as a mechanism that is
established for attaining the synthesis of two essential conceptions of
human worth, namely, the right of an accused to personal freedom
and the public interest in which a person's release is conditional on
the surety producing the accused person in court to stand trial.
As such, "bail" refers to the release of a person from legal custody. The
law's policy is to allow bail rather than prohibit it by the usual
methods. Thus, bail is granted as a norm, while rejection is an
exception, as held in the Satender Kumar Antil v. Central Bureau of
Investigation (2022) (CBI) case. In this article, the author has
discussed the concept of bail and its types. The article will also touch
upon the classification of offences for bail purposes as well as the
concept of cancellation of bail.
LEGAL STATUS OF BAIL
Bail has obtained its legal status from the following sources:
1. Article 21 of the Indian constitution: Article 21 gives
everyone the right to life and personal liberty. It provides the
fundamental right to live with human dignity and personal
freedom, which entitles us to seek bail when detained by any law
enforcement entity.
2. Section 438 of Code of Criminal Procedure, 1973: Section
438 of the CrPC clearly states that anticipatory bail is only
granted in case of non-bailable offences. The term bail is not
defined in the CrPC. Section 2(a) only defines the terms "Bailable
Offence" and "Non-Bailable Offence". It is based on the proposal
of the Law Commission of India in its 41st Report, which
suggested the inclusion of an anticipatory bail provision.
3. Article 11 of the Universal Declaration of Human Rights:
Bail,
particularly anticipatory bail, is founded on the legal concept of
presumption of innocence, which states that everyone accused of
a crime is presumed innocent until proven guilty. This is a
fundamental value established in Artice 1 of the Universal
Declaration of Human Rights.
CLASSIFICATION OF OFFENCES FOR BAIL
PURPOSES
The following offences are classified for the purpose of bail:
1.Bailable Offence: Section 2(a) of the Code of Criminal Procedure
defines bailable offences. An offence that is categorised as bailable is
referred to as a bailable offence. In the event of such an offence, bail
can be awarded as a matter of law under Section 436 of the CrPC
when such prerequisites have been satisfied. In the case of bailable
offences, the police may grant bail to the offender at the moment of
arrest or detention.
2. Non-Bailable: A non-bailable offence is one in which bail cannot be
granted as a matter of right unless ordered by a competent court. In
such instances, the accused may seek bail under Sections 437 and
Section 439 of the Criminal Procedure Code of 1973. These are serious
offences, as opposed to bailable offences. In the event of non-bailable
offences, the penalty is three years or more.
It should be noted that the Court's judicial discretion governs the issue
of bail for non-bailable offences.
HOW TO APPLY FOR BAIL
To apply for bail, the accused must sign a bail bond, which is a legal
instrument, and provide the sum stated in the bail bond. There must
also be two sureties who take the accused’s promise that the accused
will appear in court or at the police station whenever he is required to
be present for the investigation of the court proceedings.
BAIL BOND
A bail bond is an agreement made by the accused to appear in court
and cooperate with the investigation in exchange for a fee. Other
limitations, such as the person’s inability to leave the country while on
bail, are included in the bail bond. If the individual fails to comply with
the bail bond, a warrant for his or her arrest might be issued.
REGULAR BAIL
Regular bail is the legal mechanism by which a court can order
the release of someone in detention on suspicion of committing
an offence, generally on the condition that the person does not
leave or otherwise hinder the course of justice. These
requirements may require the execution of a "personal bond" or a
court may compel the execution of a bond with sureties. When a
person is detained on suspicion of committing a bailable offence,
bail becomes a right, and the person may be released in
accordance with the procedures outlined in Section 436 CrPC.
Whereas when a person is taken to prison on suspicion of
committing a non-bailable offence, bail is discretionary, and the
individual may be freed only if a good case is made out.
Section 437 applies to bail petitions submitted in magistrates'
courts, whereas Section 439 applies to bail applications filed in
courts of Session or a High Court. The granting or rejection of
ordinary bail is an exercise of judicial discretion governed mostly
by norms and a few bright-line regulations, as provided in Section
437 of the CrPC.
ANTICIPATORY BAIL
Section 438 of the Criminal Procedure Code of 1973 provdes
anticipatory bail in Indian criminal law. The Law Commission of
India, in its 41st Report, brought out the importance of adopting
a provision in the Code of Criminal Procedure enabling the High
Court and the Court of Sessions to give "anticipatory bail." This
Section permits a person to request bail in advance of an arrest
on suspicion of a non-bailable offence. The primary goal of
including this Section was to ensure that no one was imprisoned
in any form until and unless found guilty.
ANTICIPATORY BAIL UNDER THE CrPC
If a person has reason to believe that he may be arrested on
suspicion of committing a non-bailable offence, he may apply to
the High Court or the Court of Session for a direction under this
Section that, in the event of such an arrest, he shall be released
on bail, and the court shall grant him anticipatory bail. Section
438(1A) of the Criminal Procedure (Amendment) Act, 2005,
addresses the following elements that the court takes into
account before granting anticipatory bail:
1. The nature and seriousness of the charge.
2. The applicant's background, particularly whether he has ever
served time in jail following a court conviction for any cognizable
offence.
3. The applicant's ability to flee from justiçe.
4. If the charge is made with the intent to injure or humiliate the
applicant by having him arrested, either reject the application
immediately or give an interim order granting anticipatory bail.
If the High Court or Court of Session grants interim bail to the
applicant, the court shall immediately issue a show cause notice,
attested with a copy of the order, to the Public Prosecutor and the
Superintendent of Police in order to provide the Public Prosecutor
with a reasonable opportunity to be heard when the application is
finally heard by the court. The applicant seeking anticipatory bail
must be present at the final hearing of the application and the
issuance of the final order by the court.
ELIGIBILITY TO OBTAIN
ANTICIPATORY BAIL
When any person has grounds to suspect that he will be arrested
on false or trumped-up accusations because of enmity with
someone or because he worries that a false case would be set up
against him, he has the right to petition the Court of Session or
the High Court under Section 438 of the CrPC for the grant of
bail, and the court may if it sees proper, direct that he be
released on bail. As stated in the case of State of M.P. v. Pradeep
Sharma (2013), an accused who has been designated an
absconder/proclaimed offender under Section 82 of the CrPC and
who has not cooperated with the investigation shall not be
granted anticipatory release. Thus, the following conditions must
be met in order to get anticipatory bail:
1. A requirement that the individual makes himself accessible for
questioning by a police officer as needed;
2. A condition that the person not, directly or indirectly, provide
any enticement, threat, or promise to any person familiar with
the facts of the case in order to persuade him not to disclose such
details to the court or any police officer;
3. A requirement that the individual should not depart India
without the court's prior approval.
CONCLUSION
In conclusion, the right to life and personal liberty is just too
important to be ignored. The Indian judicial and legal systems have
frequently emphasised the significance of such unalienable rights of
persons, notably in the circumstances of bail approval and denial. The
courts must be mindful, though, that dishonest litigants and people
must be dealt with brutally when they exploit and abuse judicial
tools. The law unquestionably helps and supports the upright, but it
cannot be employed to further or carry out a deceptive plot.
There is also a significant desire for a comprehensive reform of the
bail system that takes into account the socioeconomic status of the
bulk of our population. When granting bail, the court must consider the
accused's socioeconomic situation and be empathetic toward them. A
thorough investigation may be conducted to discover whether the
accused has roots in the community that would dissuade him from
escaping the court.
BIBLIOGRAPHY
