Title : THE ANTICIPATORY BAIL
Date : Jan 24, 2022
Topic à Constitutional Provisions:
- The Supreme Court held that a superior court could set aside the expected bail order if there was
sufficient evidence to suggest that matters such as the size and role of the defendants in the case
were not considered by the lower court.
- About the Anticipatory Bail:
- The granting of the anticipatory bail under Section 438 was introduced when the CrPC was amended in 1973.
- Contrary to the usual bail, granted to an arrested person, on pending bail, a person is ordered to be released on bail even before arrest under the Anticipatory Bail.
- Time frame: High Court (SC) in the case of Sushila Aggarwal v. The State of NCT of Delhi (2020) has issued a landmark decision, declaring that no time limit may be set for the expected bail application and may continue until the end of the case.
- It is issued only by the Sessions Court and the High Court.
- The reason for the inclusion of Section 438 in the Act was the adoption by parliament of the fundamental principle of human liberty in a free and democratic country.
- Parliament wishes to promote respect for personal freedom and allow for a higher position in the basic law of criminal justice, so that everyone is considered innocent until proven guilty.
- Recent observations made by the Supreme Court on its use:
- HCs and SCs are empowered to grant the accused the anticipatory bail due to the mandate that the Constitution places on the right to freedom guaranteed under Article 21.
- The granting or refusal of an application under the CrPC directly affects the right to life and liberty of the individual.
- Therefore, the provision needs to be read openly, and considered in its beneficial nature.
- Courts should not read about the restrictions that the legislature did not give explicitly.
- In doing so, the Supreme Court may exercise its jurisdiction under Article 142 of the Constitution to pass that order.
- The need for such protection:
- The respondent, without being a suspect, may also be the primary caregiver or sole breadwinner.
- His imprisonment could leave his loved ones in a state of famine and neglect.
- In the 1980 case of Gurbaksh Singh Sibbia vs State of Punjab, a five-judge panel of the Supreme Court headed by Chief Justice YV Chandrachud ruled that 438 (1) should be interpreted in accordance with Article 21 of the Constitution (protection of health and personal freedom).
Tags : CrPC, criminal procedure