Arushi Sharma, BBA LL.B., Symbiosis Law School, Pune
RESEARCH QUESTION(S)
If "section 438" “CrPC” is an essential element of "article 21" of the Constitution”?
If the courts have a judicial discretion can it be used arbitrarily?
If the phrase “any condition” used in the provision a reference to the absolute power of the courts?
RESEARCH OBJECTIVE
To prove that"anticipatory bail"is an essential part of the freedoms given to us and protected by the constitution. There even if there is a judicial discretion with the courts to use the power of "anticipatory bail", it can not be used arbitrarily.
INTRODUCTION
The term "anticipatory bail" is not specified in the “CrPC”. However, in "Balchand Jain v. State of M.P.,"1 the Supreme Court defined anticipatory bond as "bail in anticipation of arrest." “The expression” is misleading because it implies “that bail may be given by the judge in anticipation of an arrest. “When a competent court” gives "anticipatory bail"," it orders that the individual be freed on parole if arrested.
"ANTICIPATORY BAIL" AS A PRE ARREST LEGAL PROCESS
In simple terms, "anticipatory bail" is a “pre-arrest judicial procedure” that orders “that if the person in whose support" it is given is later apprehended on “the accusation” in question, he will “be released on bail”. The difference between a “conventional order of parole” and an "anticipatory bail" “order is that the former” is granted “after arrest” and thus implies “release from police” detention, whereas “the latter is granted” in expectation of “arrest” and thus operative “at the time of arrest”. A order issued under "section 438" is thus meant to grant “conditional” exemption "from the touch or confinement" envisaged by “Section 46 of the Code”.2
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