Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Provision:- 482 BNSS
New law has made a provision that a person accused of committing a gang rape to all woman who are under eighteen years of age can not seek the anticipatory bail.
ANTICIPATORY BAIL LAW—
✓ Anticipatory bail application has to be supported by the affidavit of the person apprehending his arrest unlike in regular bail by Advocate's affidavit.
✓ Issue of filing Vakalatnama
Case Laws:-
Souda Beevi vs Mr. V. Ajith, 2011 (foreign residing person)
The purpose of an anticipatory bail order is that a person should make himself available for investigation without the threat of arrest floating on his shoulders. But in this case, the order of anticipatory bail was kept in cold storage for months and was misused.
Anu Mathew v. Kerala, 2020
Issues:-
1. Whether the court has jurisdiction to grant pre-arrest bail to the accused residing in a foreign country?
2. If the court has jurisdiction, then how should such jurisdiction be exercised?
First Issue—
✓ Right to Travel Abroad is a fundamental right as per Personal Liberty (Article 21)
✓ Fundamental right to access courts for determination of his rights. (Article 14 & 21)
✓ Pre-arrest bail can be supported by the affidavit of parokar of the applicant.
Second Issue—
Illustrations to be seen while exercising discretion to grant pre-arrest bail:
✓ Whether there is bonafide apprehension of arrest in a non-bailable offence in India,
✓ Whether the accused is not likely to cooperate in investigation/trial processes,
✓ Whether custodial interrogation is required,
✓ Whether the Accused bonafide went abroad as part of their job compulsions or he went abroad to flee away from the arm of law,
✓ Whether the accused was already abroad at the time of registration of the crime,
✓ Whether the accused had absconded from India after knowing about the registration of a Non-Bailable offence,
✓ Whether the accused intends to come back to India and cooperate with the investigation,
✓ Whether the attempt of the accused is to buy time and stultify the investigation and the trial.
✓ Conditions—
In Addition to conditions under 438 (2) (i) & (iii) Cr.P.C. Court can also add a condition that the accused person must within a reasonable and definite time come to India to cooperate and submit himself to investigation by police and in case he fails, the anticipatory bail would automatically vacate.
Although no provision under CrPC makes it mandatory for the accused person to be physically present in India before his pre-arrest bail application can be heard on merits, suitable conditions can be imposed by the court based on facts and circumstances of the case to ensure his presence.
The subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion.
~ Justice Krishna Iyer
