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India: Anticipatory bail, or bail before arrest; the authority in law for someone to be granted anticipatory bail; the process, procedure and requirements for someone to secure anticipatory bail; and the prevalence of anticipatory bail (1999-2003)

Publisher Canada: Immigration and Refugee Board of Canada
Author Research Directorate, Immigration and Refugee Board, Canada
Publication Date 27 March 2003
Citation / Document Symbol IND40813.E
Reference 5
Cite as Canada: Immigration and Refugee Board of Canada, India: Anticipatory bail, or bail before arrest; the authority in law for someone to be granted anticipatory bail; the process, procedure and requirements for someone to secure anticipatory bail; and the prevalence of anticipatory bail (1999-2003) , 27 March 2003, IND40813.E , available at: http://www.refworld.org/docid/3f7d4daa1c.html [accessed 11 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

The concept of anticipatory bail is mandated under Section 438 of the Indian Criminal Procedure Code (Indian Women Online n.d.; Helplinelaw.com n.d.a). Under its provisions, any person who has reason to believe that they may be arrested "on an accusation of having committed a non-bailable offence" (India 1992) may apply to the High Court or the Court of Session for grant of bail in the event of an arrest (ibid.; Indian Women Online n.d.; Helplinelaw.com n.d.a). Anticipatory bail is not available in the state of Uttar Pradesh (ibid.; India 1992).

Unlike a regular bail order that follows a person's arrest and results in that person's release from police custody, anticipatory bail is effective at the moment of arrest (Indian Women Online n.d.).

For the full text of Section 438, please consult the attached subsection excerpted from the Indian Criminal Procedure Code.

Further explaining the conditions under which a person can apply for anticipatory bail, an article published on the Helplinelaw.com Website, a "virtual law firm" based throughout India (Helplinelaw.com n.d.b), stated that a person has the right to apply for Anticipatory Bail when that person "apprehends that there is a move to get him arrested on false or trump[ed] up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him" (ibid. n.d.a).

The Website further explained that the grant of anticipatory bail is not a "blanket order" covering all offences (ibid.). An applicant must disclose the details of the offence or offences s/he believes s/he may be arrested for so that the Court can specify the particulars on the bail order (ibid.).

While no information was found on its prevalence, numerous articles reported on the granting of anticipatory bail in India (The Deccan Herald 14 Sept. 1997; The Hindu 30 Apr. 2002; ibid. 20 Mar. 2002; ibid. 24 July 2001; The Hindustan Times 14 Dec. 2002; The Indian Express 15 Oct. 1999; The Tribune 16 Jan. 2003; ibid. 15 Nov. 2002; ibid. 10 May 2002; ibid. 28 Sept. 2000).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Deccan Herald [Bangalore, in English]. 14 September 1997. "India: Another Major Tea Company Reportedly Funds Assam Militants." (FBIS-NES-97-257 14 Sept. 1997/WNC)

Indian Express. 15 October 1999. "Anticipatory Bail Plea Allowed." [Accessed 13 Mar. 2003]

Helplinelaw.com. n.d.a. "Anticipatory Bail." [Accessed 12 Mar. 2003]

_____. n.d.b. "About Us." [Accessed 18 Mar. 2003]

The Hindu [Chennai]. 30 April 2002. "Vijayakumar Granted Anticipatory Bail." [Accessed 13 Mar. 2003]

_____. 20 March 2002. A. Subramani. "Anticipatory Bail for DIG, Ashok Kumar Raps CB-CID." [Accessed 13 Mar. 2003]

_____. 24 July 2001. "Anticipatory Bail for 2 More in Flyover Case." [Accessed 13 Mar. 2003]

The Hindustan Times [New Delhi]. 14 December 2002. "Cop Accused of Rape Granted Bail." [Accessed 13 Mar. 2003]

India. 1992. Code of Criminal Procedure, 1973 [Act no. 2 of 1974] as Amended Up-To-Date Along with State Amendments and Short Notes. Allahabad: Central Law Agency.

The Indian Express [Bombay]. 15 October 1999. "Anticiparoty Bail Plea Allowed." [Accessed 13 Mar. 2003]

Indian Women Online. n.d. Deepali Chandhoke. "Obtaining Bail." [Accessed 12 Mar. 2003]

The Tribune [Chandigarh]. 16 January 2003. "Docs Get Anticipatory Bail." [Accessed 13 Mar. 2003]

_____. 15 November 2002. "High Court. WO Appointed to Rescue 'Bonded' Labourers." [Accessed 15 Nov. 2002]

_____. 10 May 2002. "High Court. Pre-Arrest Bail for Ahluwalia Allowed." [Accessed 13 Mar. 2003]

_____. 28 September 2000. "Bail for Former Jail Warden Accomplice." [Accessed 28 Sept. 2000]

Additional Sources Consulted

IRB databases

Internet sites, including:

BBC

Dawn

The European Country of Origin Information Network

The Hindu

The Indian Express

The Punjab Globe

Punjabi Network

Punjab News

Rediff

The Times of India

The Tribune

World News Connection

Search engine:

Google

Electronic Attachment

India. 1992. Code of Criminal Procedure, 1973 [Act no. 2 of 1974] as Amended Up-To-Date Along with State Amendments and Short Notes. Allahabad: Central Law Agency.

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committeed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as my be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

STATES AMENDMENTS

Uttar Pradesh. – In its application U.P. Section 438 of the Code shall be omitted. [U.P. Act 10 of 1970, S. 9 w.e.f. 28-11-1975.]

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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