Provisions Related to Anticipatory Bail in Uttar Pradesh.
Anticipatory bail is back in Uttar Pradesh after almost 33 years. The provision of pre-arrest bail was scrapped in 1976 during the Emergency. The accused will now get advance bail in the state in cases of non-bailable offenses. Anticipatory bail is back in Uttar Pradesh after almost 33 years. The provision of pre-arrest bail was scrapped in 1976 during the Emergency. The accused will now get advance bail in the state in cases of non-bailable offenses.
The Allahabad High Court and the apex court had been pressing the state government to re-apply this law. The State Law Commission also recommended the re-implementation of this system in its third report in 2009.
Apart from Uttar Pradesh and Uttarakhand, all other states have the provision of anticipatory bail.
In 2010, a bill in this regard was cleared by the Uttar Pradesh Assembly and sent to the Centre for approval. However, it was put on hold. The then Mayawati government had passed a Bill that year and sent it to the President but it was sent back with suggestions for some modifications.
The Provisions of anticipatory bail has been again made applicable in Uttar Pradesh following an approval by President Ram Nath Kovind to the CrPC (Uttar Pradesh Amendment) Bill 2018, which was earlier passed in the Assembly. Section 438 of CrPC, 1973, which grants bail to a person apprehending arrest on a non-bailable offence, will now again be applicable. The section was removed in CrPC (Uttar Pradesh Amendment) Bill, 1976, in the Emergency period. Officials said there were frequent demands to bring it back.
Under the provision, when any person has a reason to believe that he/she may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the session’s court for a direction under this section. If the court deems fit, it may direct that in the event of such arrest, the person shall be released on bail.
The deletion of this provision not just went against those anticipating arrest but also burden the courts. In the case of Smt. Sudama & others vs. State of U.P. & others, the Allahabad High Court has suggested that if the provision on anticipatory bail were available in the State of Uttar Pradesh, the burden on the High Court and other courts would substantially reduce and would allow judges to deal with more pressing matters.
In India, the Criminal Procedure Code 1973 provides protection to persons anticipating or fearing arrest. The essential difference between regular bail and anticipatory bail is that while a regular bail is applied for by a person/ accused only after his arrest, anticipatory bail (“Anticipatory Bail”) is applied for by a person in anticipation of his arrest and to secure orders from court to prevent the actual arrest.
However, there are certain conditions under which an application for grant of Anticipatory Bail may be considered and it is not granted in a routine manner and depends on facts of the case.
Empowerment of High Court
The High Courts and Court of Sessions (“Courts”) in India are empowered to make an Order granting anticipatory bail that in the event of arrest; a person shall be forthwith released on bail without having to undergo the rigor of jail. Generally, the applicant has to first approach the Court of Sessions for moving an application for Anticipatory Bail unless special circumstances exist for filing the same in the High Court. If an application is rejected by the Court of Sessions, a fresh application cannot be made to the High Court. Where an application for Anticipatory Bail has been rejected by the High Court, thereafter a subsequent application for Anticipatory Bail cannot be entertained by the Court of Sessions.
The Application for Anticipatory Bail would not be maintainable if the Applicant has already been arrested for the same accusation and/or is already on bail/anticipatory bail for the same accusation or he has voluntarily surrendered before the trial court for in respect of the same accusation.
COMPETENT JURISDICTION
An Applicant can approach the Courts within whose jurisdiction he apprehends his arrest. It is irrelevant that the alleged offence has been committed outside the jurisdiction of such Courts. If the Courts do not have territorial jurisdiction it may yet grant Anticipatory Bail for a short term with adequate safeguards for approaching the Court having jurisdiction to entertain such application after considering the facts and circumstances involved therein.
So for example, if an FIR is registered in Delhi or Lucknow or Allahabad against an accused residing in Noida or Greater Noida then the accused person may seek anticipatory Bail from the Session Court Gautam Buddha Nagar (popularly known as Surajpur Court). Advocate or Lawyer in Session Court Gautam Buddha Nagar can help in getting anticipatory Bail.
DISCRETION OF COURTS TO GRANT ANTICIPATORY BAIL
- A special case is made out which would indicate that there are sufficient reasons to believe that the Applicant may be arrested on baseless grounds.
- The accusations have been made with a dishonest motive or with an intention to cause injury/humiliation to the Applicant and having him so arrested.
- The allegations against the Applicant are of vague or general nature.
- The applicant satisfies to the Court granting Anticipatory Bail that he hails from a respectable family, has deep roots in the society and is not likely to abscond or evade the process of the Court or in any way hamper investigation.
- The Complainant is an influential person as against the accused who is a weak person or if a case is instituted against a political rival.
REFUSAL OF ANTICIPATORY BAIL
- A few circumstances under which Anticipatory Bail may be refused are:
- The possibility of the Applicant to abscond in the event cognizance is taken by the trial court or warrant of arrest has been issued by the trial court.
- If the prima facie case with which the Applicant has been charged can be made out.
- The Applicant has previously undergone an imprisonment on conviction in respect of any cognizable offence.
- When a legitimate case for remand of the Applicant/offender to the police custody is be made out by against the Applicant.
- Application preferred on the ground of Sickness alone is not sufficient. Application has been preferred for offences not yet committed or with regard to accusations not so far leveled.
DURATION AND EXPIRY OF THE ANTICIPATORY BAIL
The duration and expiry of the Anticipatory Bail is decided by the Court granting the same. An Anticipatory Bail once granted must be held to be operative till the conclusion of the trial unless it is cancelled by the Court granting Anticipatory Bail. After expiry of the period for which the Anticipatory Bail was granted, the Court granting Anticipatory Bail may extend the duration for the same. In certain cases the Anticipatory Bail orders can be of a limited period and on expiry of that duration or the extended duration, the Court granting Anticipatory Bail may leave it the Trial Court to take appropriate measures after the expiry the duration or the extended duration of Anticipatory Bail.
Plea for Anticipatory Bail Not Maintainable Before HC without Approaching Sessions Court, Unless There Are ‘Special Reason
Recently in the case of Harender Singh vs. State of UP. 6478 of 2019, Allahabad High Court held that the anticipatory field under section 438 of Criminal Procedure Code is not maintainable before the High Court without exhausting remedy before the court of sessions, unless there are extraneous or special reasons.
Justice Chandra Dhari Singh while considering an anticipatory bail plea, considered the objection raised by the state which contended that the accused, without exhausting the remedy before the jurisdiction Sessions Court, has directly approached the High Court. Thus the application is not maintainable and the applicant has to be relegated to the court of sessions first and then he can approach the High Court, it was contended.
Right to Get Anticipatory Bail Is Not Any Fundamental Right, Says Punjab & Haryana HC
In the case of Sanjeev Sharma vs. State, 21859 of 2019, Punjab and Haryana High Court said that Right to get anticipatory bail is not any fundamental right, remarked the High Court of Punjab and Haryana while rejecting an application filed by a man involved in case registered under the Narcotics Drugs and Psychotropic Substances Act, 1985.
Justice Rajbir Sehrawat observed in the particular matter, that the statutory power of granting pre- arrest bail is so extraordinary that is not even available in some parts of the country. The Judge Said that, there is no doubt that, the accused as citizen has fundamental right to life and liberty. However, that right to life and liberty can very well be curtailed in accordance with the procedure established by law. As par the procedure prescribed for Criminal Administration of Justice, the normal procedure for curtailing the life and liberty of the accused, CrPC prescribe that the investigating officer can arrest an accused even without warrant and without assistance of the court. The Court have been given special and extraordinary power under section 438 of CrPC. This statutory power of granting pre-arrest bail is so extraordinary that it is not even available in all parts of the county; and even thorough- out the country qua some offences under special statues. Hence the court said that, right to get anticipatory bail is not any fundamental right. The provision of section 438 CrPC. provided only remedy to an accused and leaves the extent of right to liberty to be decided by the court.