All About the Pre-Arrest Bail
Mar 24, 2023
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Context
Probable Question
About Bail
About the pre-arrest bail
Eligibility for Receiving Anticipatory Bail
Conditions for Granting Anticipatory Bail
Frequently questions about the Pre-Arrest Bail
Today’s edition of our Current Affairs will comprise a discussion on Pre-arrest Bail. Read further to upgrade your UPSC CSE knowledge and also understand the topic’s relevance to the UPSC syllabus.
For Prelims: Polity and Governance
Code of Criminal Procedure (CrPC), Sections 437 and 439, Regular bail, Interim bail or short-term bail, Anticipatory or pre-arrest bail.
For Mains: GS Paper II ( The Judiciary, Indian Constitution)
About Bail, About the pre-arrest bail, Eligibility for receiving anticipatory bail
Context
Recently, the Supreme Court agreed to hear a petition filed by the Karnataka Lokayukta, challenging a Karnataka High Court order granting pre-arrest bail to the BJP MLA, who was also serving as the chairman of the Public Sector Undertaking (PSU) Karnataka Soaps and Detergents Limited (KSDL).
- Lokayukta is a state body empowered to deal with corruption complaints against public servants.
Probable Question
What is anticipatory bail, and when can it be granted? (150 words, 10 marks)
About Bail
- Bail is the temporary release of an accused person from custody with the promise that they will appear at trial.
- Black’s Law Dictionary describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court."
- The Code of Criminal Procedure (CrPC) distinguishes between offenses that are "bailable" and "non-bailable" even though "bail" has not been expressly defined in Indian statutes.
- An accused person who has been arrested and detained for a criminal offense in India may be granted bail as a legal right under Sections 437 and 439 of the Criminal Procedure Code.
- Criminal Procedure Code also defines three kinds of bail that can be granted: regular bail under Sections 437 and 439; interim bail or short-term bail; and anticipatory or pre-arrest bail.
| Note: Bailable offence: Bailable offenses are those offenses in which the accused is entitled to be released on bail as a matter of right. These offenses are less serious in nature, and the accused is presumed to be innocent until proven guilty. Some examples of bailable offenses are causing simple hurt, cheating, and causing mischief. Non-Bailable offence: Non-bailable offenses are those offenses in which the accused is not entitled to be released on bail as a matter of right. Non-bailable offenses are more serious offenses, punishable with at least three years' imprisonment and above.Some examples of non-bailable offenses are murder, rape, kidnapping, and terrorism. |
About the pre-arrest bail
- Pre-arrest bail is also known as anticipatory bail.
- The provision for “anticipatory bail” was introduced under Section 438 of the CrPC after the 41st Law Commission Report in 1969 recommended.
- The Law Commission report recommended the need for a measure that protects against arbitrary violation of one’s personal liberty, such as when politicians detain their opponents in false cases.
Eligibility for Receiving Anticipatory Bail
- For non-bailable offence: Anticipatory bail can be granted under Section 438, when “any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”.
- Who can grant: Under this section, it can be granted by the High Court or the Court of Session for non-bailable offenses for which one anticipates arrest, even if the actual arrest has not happened or the FIR has not been registered.
- Principles for grant: The amended Section 438 laid down principles for consideration for the grant of anticipatory bail under subsection, such as whether the accused is likely to flee, is a habitual offender, or is likely to tamper with evidence along with his antecedents.
| Note: It is vital to know that state legislatures are empowered to amend certain provisions of the CrPC. Maharashtra, Odisha, and West Bengal follow their own, modified versions of Section 438.Uttar Pradesh and Uttarakhand did away with anticipatory bail through the CrPC (UP Amendment) Bill, 1976, during the emergency. In 2019, however, this was reintroduced after then President Ram Nath Kovind approved the CrPC (Uttar Pradesh Amendment) Bill, 2018. Similarly, in 2019, the Uttarakhand Assembly passed an amendment bill seeking to revive Section 438 of the CrPC. |
Conditions for Granting Anticipatory Bail
While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2), like:
- The person shall make himself available for interrogation by a police officer as and when required.
- The person cannot make any inducement, threat, or promise, directly or indirectly, to any person acquainted with the facts of the case to dissuade him from disclosing them to the court or the police.
- The person shall not leave India without the previous permission of the court.
- Such other conditions may be imposed under sub-section (3) of section 437 “as if the bail were granted under that section”.
| Additional Information: Types of BailRegular bail: It is also known as interim bail, and is the most common type of bail granted in India. It is granted to an accused person who has been arrested and detained by the police but has not yet been charged with a crime. Interim Bail: Interim bail is a type of bail granted to an accused person for a short period, pending the final disposal of their bail application. It is granted when the court has not yet made a final decision on the bail application. Interim bail is generally granted for a short period of time Transit Bail: Transit bail is a type of bail granted to an accused person who is apprehending arrest in a state other than where the offense was committed. It is a pre-arrest legal remedy available to an accused person who is not in the state where the offense was committed but is likely to be arrested in that state. |
News Source: The Indian Express
Frequently questions about the Pre-Arrest Bail
What are the four types of bail?
- Pre-arrest bail:
- Pre-arrest bail is also known as anticipatory bail.
- The provision for “anticipatory bail” was introduced under Section 438 of the CrPC after the 41st Law Commission Report in 1969 recommended.
- The Law Commission report recommended the need for a measure that protects against arbitrary violation of one’s personal liberty, such as when politicians detain their opponents in false cases.
- Regular bail:
- It is also known as interim bail, and is the most common type of bail granted in India.
- It is granted to an accused person who has been arrested and detained by the police but has not yet been charged with a crime.
- Interim Bail:
- Interim bail is a type of bail granted to an accused person for a short period, pending the final disposal of their bail application.
- It is granted when the court has not yet made a final decision on the bail application.
- Interim bail is generally granted for a short period of time
- Transit Bail:
- Transit bail is a type of bail granted to an accused person who is apprehending arrest in a state other than where the offense was committed.
- It is a pre-arrest legal remedy available to an accused person who is not in the state where the offense was committed but is likely to be arrested in that state.
Which crime has no bail in India?
The court may refuse to grant bail in the following circumstances: The "Bail Bond" was not properly executed; the crime, such as "murder" or "rape," carries a death or life sentence; the accused attempted to flee; or the accused's qualifications are in doubt.
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Frequently questions about the Pre-Arrest Bail
What are the four types of bail?
- Pre-arrest bail:
- Pre-arrest bail is also known as anticipatory bail.
- The provision for “anticipatory bail” was introduced under Section 438 of the CrPC after the 41st Law Commission Report in 1969 recommended.
- The Law Commission report recommended the need for a measure that protects against arbitrary violation of one’s personal liberty, such as when politicians detain their opponents in false cases.
- Regular bail:
- It is also known as interim bail, and is the most common type of bail granted in India.
- It is granted to an accused person who has been arrested and detained by the police but has not yet been charged with a crime.
- Interim Bail:
- Interim bail is a type of bail granted to an accused person for a short period, pending the final disposal of their bail application.
- It is granted when the court has not yet made a final decision on the bail application.
- Interim bail is generally granted for a short period of time
- Transit Bail:
- Transit bail is a type of bail granted to an accused person who is apprehending arrest in a state other than where the offense was committed.
- It is a pre-arrest legal remedy available to an accused person who is not in the state where the offense was committed but is likely to be arrested in that state.
Which crime has no bail in India?
The court may refuse to grant bail in the following circumstances: The "Bail Bond" was not properly executed; the crime, such as "murder" or "rape," carries a death or life sentence; the accused attempted to flee; or the accused's qualifications are in doubt.
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