Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under section 438 of the Cr.P.C., that in the event of such arrest he shall be released on bail.
Following factors which Court take into consideration while granting anticipatory bail are:
- The nature and gravity of the accusation;
- The possibility of the applicant to flee from justice;
- The antecedent of the applicant; and
- Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
After considering these factors Court may either give anticipatory bail or reject anticipatory bail application.
The term “arrest” has neither been defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1860 nor in any other enactment dealing with offences. The word “arrest” is derived from the French word “arrater” meaning “to stop or stay”. It signifies a restraint of a person. “Arrest” is thus a restraint of a man’s person, obliging him to be obedient to law. “Arrest” then may be defined as “the execution of the command of a Court of Law or of a duly authorized officer”. Section 438 of the Code makes special provision for granting `anticipatory bail’ which was introduced in the present Code of 1973. The expression (`anticipatory bail’) has not been defined in the Code. But as observed in Balchand Jain v. State of M.P., (1976) 4 SCC 572, anticipatory bail means a bail in anticipation of arrest. The expression `anticipatory bail’ is a misnomer inasmuch as it is not as if bail presently granted in anticipation of arrest. Where a competent court grants `anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. It was also observed that the power of granting `anticipatory bail’ is extraordinary in character and only in exceptional cases where it appears that a person is falsely implicated or a frivolous case is launched against him or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail” that such power may be exercised. Thus, the power is `unusual in nature’ and is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and a High Court…..Union of India v. Padam Narain Aggarwal Etc., Criminal Appeal No. 1575 of 2008, SLP (Crl) No. 2075 of 2007, AIR 2009 SC 254
Related Article:
Factors consider while grant of bail are: