ANTICIPATORY BAIL
An Anticipatory Bail cannot be limited to a fixed time period and can continue till the end of the trial. The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
Section 438 is a procedural provision concerned with personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.
As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
The provision empowers only the Sessions Court and High Court to grant anticipatory bail.
If there are any special circumstances necessitating a limit on the tenure of anticipatory bail, it is open for the court to do so. Nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting relief in terms of time.
When Parliament has not thought it appropriate to curtail the rights of the citizens, it would be not appropriate for the SC to curtail powers granted to courts with regard to anticipatory bail.
Anticipatory bail application could be moved by a person even before filing of FIR.
The court, while granting anticipatory bail, should examine seriousness and gravity of the offence to impose any condition on the petitioner, if necessary.
Arbitrary arrests continue to be a pervasive phenomenon in the country and therefore, discretionary power of courts to grant anticipatory bail should not be curtailed and the protection should continue till end of trial.
Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being.