INTRODUCTION
“BAIL IS A RIGHT WHEREAS JAIL IS AN EXCEPTION.”
In the early days when there was no system of bail. The magistrates only came for the conduct of the trial once in a year. The accused had to wait for one whole year and that there was no surety of finalizing the case.
This is the infringement of a person’s right to a fair and speedy trial and right against illegal detention covered under the right to personal liberty which is a person’s fundamental right as provided under Article 21 of the Constitution of India.
Therefore, provisions of bail are as necessary as that of other provisions. They give a chance to the accused person to not be in jail and appear before the court as and when they are called because as our jails are overcrowded with a lot of convicts and if an accused is giving a surety that he will come to appear on the date of hearing so there is no point in restraining them in jails.
Bail is a right in which a person who is awaiting trial can ask for his release. It is the matter of right in bailable offences. And discretionary power of the court in the matter of non-bailable offences. Anticipatory bail is a bail-in that a person can ask for release even before he is arrested. One can ask for only in non-bailable offenses. Therefore, it is the voluntary power of the court to grant anticipatory bail. Section 438 of the Criminal Procedure Code, 1973 deals with the provision of anticipatory bail.
Objective
The main object of anticipatory bail is that a person should not be humiliated to satisfy the complaints of the complainant. One party should not be served with justice at the cost of providing injustice to the other party.
The court will consider the following factors before granting or denying the application of anticipatory bail.
- The seriousness of the allegation apprehended by the applicant.
- Whether the law has convicted the applicant, previously, in respect of any cognizable offences.
- The accusations were to defame the reputation of the applicant.
- The possibility that the applicant is absconding from justice.
Directions Issued By The Court
The Session Court and High Court issue the anticipatory bail. If the application for anticipatory bail is granted, the court will issue directions as to the appearance of the applicant:
- Firstly, the person will make himself available for the interrogation by the police officer as and when required.
- Secondly, the person shall not make any threat or promise to any person familiar with the facts of the case of the to persuade him from disclosing such facts to the Court.
- Thirdly, the person shall not leave India without the prior permission of the Court.
- Fourthly, the person will fulfill the conditions mentioned under section 437(3).
- And the last, the court can impose such other conditions as may be necessary in the interests of justice, in the light of the facts of the particular case.
It is not necessary that only the accused person can ask for anticipatory bail and also the appearance before the court is not necessary for applying for anticipatory bail.
The orders under anticipatory bail are of limited duration only and on its expiry, the court granting such bail should leave it to the regular court to deal with the matter.
Conclusion
Everything has its pros and cons and the same is with anticipatory bail. The right of one becomes the duty of the other. If the Government of India provides this right then it becomes the duty of the Citizens to not misuse this power and use this as and when only appropriate to do so.
They do put this right to wrong use by asking for it after doing a wrong to the society, and before police arrest them for the same but also the right is boon for the people who want to save their reputation in the society. This way also mostly the high-class people can file for the application of anticipatory bail; when they feel that someone will make fraud charges against them.
The poor people suffer a lot in our society because they don’t know much about the laws. Someone can make them convict under the fraud charges easily and no one is there to help them because of money related issues. Bail is a matter of right which law needs to provide to all.