Roshni Naskar, Symbiosis Law School, Pune
RESEARCH OBJECTIVES
§ To critically examine S. 438, CrPC.
§ To appraise the scope and exceptions to the rule of anticipatory bail. RESEARCH QUESTIONS
§ Whether S. 438 acts as a hindrance in investigation.
§ Whether anticipatory bail can be rejected or cancelled.
§ Whether anticipatory bail can be prayed for in offences of rape.
§ Whether the presence of the person seeking anticipatory bail in the Court is a mandate.
INTRODUCTION
Bail is defined in Black's Law Dictionary as "a security such as cash or bond, especially security required by a court for the release of a prisoner who must appear at a future date."
The Bombay High Court in Pursuit of Justice v. Union of India1 held that the right of dignity incorporates protection of one’s reputation.
Moral uproar cannot trump the rights of the accused enshrined in Article 21 of the Constitution2. The 41st Law Commission Report of India3 proposed anticipatory bail to safeguard the accused from false implication and the ensuing harm to his reputation and self- esteem4. Nonetheless, High Courts and Sessions Courts must rely on such provision if it is apparent in the "interests of justice," as stated in India's 48th Law Commission Report.
Moreover, the Law Commission of India, in its 203rd report, put forth removing sub-section 1B of Section 438 CrPC, together with the proviso directing the accused's immediate arrest upon bail rejection, and suggesting inserting a provision in Section 438 CrPC enabling the applicant to approach either the High Court or Court of Session and barring recourse to any other alternative forum thereafter. Further in its 268th report, the Law Commission suggested to make the anticipatory bail applicable for a limited duration as upheld in I.Y. Chandra Earappa v. State of Karnataka.
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