Why in News?
The court recently reiterated that anticipatory bail cannot be denied solely because the accused is "non-cooperative" (refusing to confess), as the Right Against Self-Incrimination remains paramount.
Definition and Purpose
- Pre-Arrest Protection: It is a direction to release a person on bail before they are even arrested.
- Prevention of Harassment: Its primary goal is to protect individuals from being falsely implicated or humiliated through "politically motivated" or "frivolous" arrests.
- Non-Bailable Offences: It can only be sought for non-bailable offences (serious crimes where bail is not a matter of right).
Who Can Grant It?
- Concurrent Jurisdiction: Only the High Court or the Court of Session has the power to grant anticipatory bail.
- Discretionary Power: It is not a fundamental right; the court uses its discretion based on the facts of each case.
Factors Considered by the Court
- Nature of Accusation: The gravity and seriousness of the alleged offence.
- Criminal Antecedents: Whether the applicant has a history of previous convictions or jail time.
- Flight Risk: The likelihood of the accused fleeing the country or evading justice.
- Tampering: The possibility of the accused threatening witnesses or destroying evidence.
Standard Conditions
When granting this bail, the court typically imposes several rules:
- The person must make themselves available for police interrogation as required.
- The person cannot leave India without the court’s prior permission.
- The person must not induce or threaten any person acquainted with the facts of the case.
How Long Does It Last?
- No Fixed Time Limit: In the landmark Sushila Aggarwal v. State of Delhi (2020) case, the SC ruled that anticipatory bail does not end when the chargesheet is filed.
- Life of the Trial: It can generally continue until the end of the trial unless there are special circumstances to cancel it.
Old Law (CrPC) vs. New Law (BNSS)
| Feature |
Section 438 CrPC (Old) |
Section 482 BNSS (New) |
| Presence in Court |
Not always mandatory during hearings. |
The court may require the presence of the applicant at the time of final hearing if requested by the Public Prosecutor. |
| Jurisdiction |
Sessions or High Court. |
Retains Sessions or High Court jurisdiction. |
| Interim Orders |
Courts often gave "No-Arrest" stay orders. |
Courts now prefer passing a formal "Interim Order" with specific conditions. |
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