Pre- Arrest Bail / Anticipatory Bail

Subject :Polity

Section: Judiciary

Concept :

The Supreme Court agreed to hear a petition filed by the Karnataka Lokayukta challenging a Karnataka High Court order granting pre-arrest bail to BJP MLA MadalVirupakshappa, who is the main accused in an alleged caseof bribe.
Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.
Though not defined in Indian statutes, the Code of Criminal Procedure (CrPC) differentiates between “bailable” and “non-bailable” offences. It identifies three kinds of bail

Types of Bail in India:

Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
Anticipatory Bail: A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted. For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC). It is issued only by the Sessions Court and High Court.

Section 438 of the CrPC lays down the provisions on anticipatory Bail:

438(1): When any person anticipates that he/she may get arrested on an accusation of having committed a non-bailable offence, he/she may apply to the High Court or the Court of Session for a direction under this Section. The Court may direct (if it thinks fit) that in the event of such arrests, he/she shall be released on Bail even before an arrest is made without subjecting him/her to further restraints.
438(2): When the High Court or the Session Court makes a direction under Sec. 438(1), it may lay down certain conditions in the light of the facts of the particular case, as it may think fit.

Background

Anticipatory Bail became part of the CrPC in 1973 after the 41st Law Commission Report (1969) recommended for the inclusion of such provision.
It was included to protect the arbitrary violation of the right to personal liberty of the person.