Anticipatory or pre-arrest bail

Karnataka BJP MLA Madal Virupakshappa has been granted pre-arrest bail (subjected to cooperate in investigation) by the High Court, a decision challenged in Supreme Court by the state Lokayukta.

Previously, Virupakshappa approached a civil court in Bengaluru and obtained a temporary injunction against defamatory media reporting in the corruption case against 45 media outlets.

What is pre-arrest bail?

  • Bail is a process of procuring the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.”
  • Although “bail” has not been expressly defined in Indian statutes, the Code of Criminal Procedure (CrPC) differentiates between “bailable” and “non-bailable” offenses. It also defines three kinds of bail that can be granted —
  • regular bail under Sections 437 and 439;
  • interim bail or short-term bail which is given when regular or anticipatory bail application is pending before the court;
  • anticipatory or pre-arrest bail.
  • The provision for “anticipatory bail” was introduced under Section 438 of the CrPC after the 41st Law Commission Report in 1969 recommended the need for a measure that protects against arbitrary violation of one’s personal liberty, such as when politicians detain their opponents in false cases.

When can anticipatory bail be granted?

  • When “any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”.
  • Granted by the High Court or the Court of Session, under this section, for non-bailable offenses for which one anticipates arrest, even if the actual arrest has not happened or the FIR has not been registered.
  • Non-bailable offenses are more serious offenses, punishable with at least three years imprisonment and above.
  • Amendment in 2005, following which it laid down principles for consideration for the grant of anticipatory bail under subsection such as whether the accused is likely to flee, is a habitual offender, or is likely to tamper with evidence along with his antecedents, such as previously being arrested for a cognizable offense.

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