Landmark Judgment: On the proceedings started under Section 82 and 83 of CrPC, the accused will not get anticipatory bail
When F.I.R. If a case is registered against a person, then the police can arrest that accused person. In such a situation, the person can apply for anticipatory bail under section 438 of CrPC to prevent that person's arrest. And if the person has already been arrested, then an application is made under section 439 of CrPC to get the detained person bail at the earliest. The first thing to do after being arrested is to get a bail of that person.
What is bail? When can a person get bail? This blog is about bail.
Meaning of bail
Bail means to ensure one's appearance before the inquiring authority or the trial court. After applying for bail in the court, when it comes to giving a decision on bail, then the court examines these three things,
- If the court grants him bail, will the accused person appear for trial after getting bail or not?
- Will the accused person try to intimidate the evidence or the witness in any manner?
- The severity of the offence.
Type of offence: There are two types of offences:
Bailable offenses are those offenses in which it is the right of the accused to seek bail. No judge or police officer can deny bail to the accused person in these offenses.
In a non-bailable offence, bail is not a right of the accused. But it depends on the discretion of the judge and the nature of the offence whether he should be granted bail or not.
Identification of bailable and non-bailable offences:
- The list of bailable and non-bailable offenses is given, from which it is recognized which offense is bailable and non-bailable. For example, every section of the I.P.C. mentions whether the offense is bailable or non-bailable. If the offense is bailable, then the offender gets bail quickly.
- But if the offense is non-bailable, the accused person is not given bail by the police. In that, the person must apply for regular or anticipatory bail. It also depends on whether the person has been arrested or not. If a person is arrested, he cannot apply for anticipatory bail.
Concept of Anticipatory Bail:
- If the person has not been arrested but is likely to be arrested at any time, then an application for anticipatory bail under section 438 CrPC is made.
- The right to grant anticipatory bail is only with the Court of Session or the High Court. First of all, the application is made in the Court of Session, and when the application is rejected from it, it is placed with the High Court.
- Anticipatory bail cannot be applied if the accused is arrested once the F.I.R. is lodged. It can be filed only if the person has not been arrested. While deciding on the anticipatory bail application, the court examines three things:
- Will the arrest cause damage to that person's reputation?
- Is the offense against that person valid?
- If required, will the accused person appear before the court or the inquiring authority?
After considering these three terms, the judge decides whether the person should be granted anticipatory bail or not. If granted bail, he can use certified anticipatory bail to the person when a police officer comes to arrest him.
Is there any F.I.R. Can I get anticipatory bail even before?
Anticipatory bail doesn't need to be granted to a person under F.I.R. It just gets recorded. It is not necessary to file an F.I.R. for anticipatory bail. If a person feels that there may be an F.I.R. against him, then as a precaution, he can apply for anticipatory bail. And if the F.I.R. has been registered, then the application for anticipatory bail is made in the court by obtaining the certified copy of the F.I.R. from the magistrate's court or online portal of your state. You can download the F.I.R. from the online portal.
What if someone is already arrested?
- If the person has already been arrested, then under Section 437 of CrPC, one has to apply for bail in the Magistrate Court. Generally, the bail application is rejected by the magistrate in an offense of serious nature.
- After taking a certified copy of the dismissed bail, he has to apply for bail in the sessions court. Bail is filed in the Court of Session under Section 439 of CrPC. And if the petition is also rejected in the Sessions Court, then under Section 439 of CrPC, a bail application is made in the High Court.
- It is essential to have the application dismissed by the Sessions Court before filing a petition in the High Court. Considering the nature of the case, the court often refuses bail before filing the charge sheet for recording evidence and witnesses.
- In such a situation, bail is granted after filing the court charge sheet. If the High Court also rejects the bail application, the bail application has to be made in the Supreme Court.
The historic decision of the Supreme Court
Prem Shankar Prasad Vs. State of Bihar 21 October 2021
- In a case where Patna High Court granted anticipatory bail to a fugitive. Afterward, a bench of Justices MR Shah and AS Bopanna quashed the said order. The court noted that if an offender is declared a fugitive under section 82 of CrPC, then that offender will not be entitled to anticipatory bail.
- In this case, an F.I.R. was registered for offenses punishable under sections 406, 407, 468, and 506 of CrPC 1860. After this, the criminal kept on running to avoid arrest.
- The trial against the accused had started in court. After that, the accused moved the court for anticipatory bail. Which was rejected by the court as the accused had been absconding for a long time. Since proceedings were issued against him under sections 82 and 83 of CrPC, the accused is not entitled to anticipatory bail.
- Bail is a rule, but jail is an exception. It depends on the offense whether bail should be granted or not. The court does not refuse bail if the offense is not severe, there is no danger to the safety of the witnesses, or the accused does not refuse to appear in court.
- Earlier bail applications were usually rejected, but now the trend is changing. Lower courts, session courts, and magistrates generally rejected bail applications. But now, time is changing, and courts give bail.
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