Anticipatory Bail (High Court) (Draft)
Understanding the Meaning of Anticipatory Bail
Anticipatory bail is a legal provision that allows a person to seek bail in anticipation of their arrest for a non-bailable offense. Unlike regular bail, which is applied for after an arrest has been made, anticipatory bail is a pre-emptive measure. Its main purpose is to protect individuals from being harassed or humiliated by being taken into police custody on the basis of false or fabricated charges.
The fundamental idea is to balance an individual's right to personal liberty with the state's power to investigate and maintain law and order.
Legal Provisions in BNSS
In the Indian legal system, the law governing this concept has transitioned from the old Code of Criminal Procedure (CrPC) to the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
BNSS Section 484: This is the key provision that deals with anticipatory bail. It empowers the High Court or the Court of Session to issue a direction that in the event of an arrest, the person shall be released on bail. This section essentially replaces Section 438 of the former CrPC.
Basic Structure and Doctrines
An application for anticipatory bail is not a right but a discretionary relief granted by the court. The court's decision is based on several factors and legal principles.
Reasonable Apprehension of Arrest: The most crucial element is that the applicant must show a "reason to believe" that they may be arrested for a non-bailable offense. This apprehension should be based on specific facts and circumstances, not just vague or general fears.
Nature and Gravity of the Offense: The court will carefully examine the seriousness of the crime the person is accused of. More serious offenses may make it harder to get bail, though it is not an absolute bar under the BNSS.
Previous History: The court will look into the applicant's past conduct, including whether they have been previously jailed after being found guilty of an offense.
Likelihood of Absconding: The court assesses whether there is a risk that the person might flee from justice if released on bail.
Risk of Influencing Witnesses: The court considers whether the applicant might use their freedom to threaten or influence witnesses or tamper with evidence.
Essential Conditions Imposed by the Court
If the court decides to grant anticipatory bail, it usually imposes certain conditions to ensure the investigation proceeds smoothly. These can include:
Making oneself available for police interrogation whenever required.
Not directly or indirectly making any threat, promise, or inducement to any person familiar with the facts of the case.
Not leaving the country without the court's prior permission.
Any other condition the court deems necessary.
Step-by-Step Guide to Get Anticipatory Bail from High Court
Here are the key steps involved in applying for anticipatory bail from the High Court, as per the new BNSS Act.
Hire a Lawyer: The first and most critical step is to hire an experienced criminal lawyer. They will guide you on the legal process and draft all necessary documents.
File a Petition: Your lawyer will draft a formal application, known as a petition, which will be filed in the High Court. This petition must clearly state the facts of the case, the offense for which you fear arrest, and a strong reason why the court should grant you anticipatory bail.
Include Necessary Documents: The petition must be supported by an affidavit and a Power of Attorney (Vakalatnama) for your lawyer. You should also attach a copy of the FIR (if available) and any other relevant documents that support your claim.
The Hearing: The High Court will hear the arguments presented by your lawyer. The Public Prosecutor, who represents the state and the police, will also present their side, arguing against the grant of bail. The Public Prosecutor will be notified of your application before the hearing.
Court's Decision: After hearing both sides and considering all the facts and circumstances, the judge will make a decision.
Bail Granted: If the court grants the bail, it will issue a specific order with conditions. In the event of an arrest, you will be released by the police immediately upon furnishing the required bail bond.
Bail Rejected: If the High Court rejects your application, you may then have the option to approach the Supreme Court of India.
A note on the BNSS and CrPC: The BNSS, 2023 is the new procedural law that will replace the CrPC, 1973. While the fundamental principles of anticipatory bail remain the same, the section number and some of the nuances have changed. The BNSS aims to make the process more streamlined, though it is essential to consult with a legal professional for the most accurate and up-to-date information.