Bail is the concept under the Code of Criminal Procedure, 1973 which deals with the release of the person in the matters which are yet to be called by the court from custody on depositing the security by undertaking that he/she will appear before the court when required.

When the court directs to release a person on bail even before such a person gets arrested is known as an anticipatory bail. The application for anticipatory bail can be filed under Section 438 of the Code of Criminal procedure, 1973.

There are two prerequisites needed to be fulfilled by the person for getting the anticipatory bail:

  1. Apprehension of arrest
  2. The person is not arrested before the grant of anticipatory bail.

Only the Sessions Court and the High Court have the power to grant anticipatory bail to a person.

An application for anticipatory bail can be made in both bailable offences and non-bailable offences. In the former case, bail is granted as a matter of right while in the latter case bail is not granted as a matter of right but is a privilege granted by the court by using its discretionary powers.

Under section 436 of Code of Criminal Procedure, 1973 provides that a person who is an accused of a bailable offence can be granted bail as a matter of right provided he complies with all the conditions of the bail-bond.

Bailable offences are not serious in nature. Some examples of bailable offences are cheque bounce, unlawful assembly, giving of bribe during the election, stalking, and criminaldefamation.

Under section 437 of Code of Criminal Procedure, 1973 provides that a person who is an accused of a non-bailable offence can be granted bail not as matter of right but due to the discretionary powers of the competent court. Provided the accused fulfills certain prerequisites.

Non-bailable offences are grave and serious in nature. Some example of non-bailable offences are rape, dowry, abetment to suicide,  trafficking of a person, counterfeiting of Indian currency, waging war against the government, sedition, etc.

FACTORS CONSIDERED BY THE COURT BEFORE GRANTING THE ANTICIPATORY BAIL

  1. Nature of the accusation.
  2. The gravity of the accusation.
  3. Possibility of absconding of an applicant from justice.
  4. Previous conviction, if any.
  5. Cases against the applicant.
  6. Cases of cognizable offence against an applicant.

In case of Bailable offence:

  1. There is sufficient reason to believe that the accused has not committed the said offence.
  2. There are sufficient reasons before the court to conduct the further inquiry in the case.
  3. The person is not accused of a crime that is punishable by imprisonment up to 10 years or more, life imprisonment, death.

In case of Non-bailable offence:

  1.  If the accused is a woman.
  2. If the accused is a child.
  3. If there is a lack of evidence against the applicant.
  4. If there is a delay in the registration of the FIR.
  5. If the accused is physically and mentally sick.

“RAPE CASES ARE NON BAILABLE OFFENCE IN NATURE, COURT BY USING HIS DISCRETIONARY POWER AND AFTER CONSIDERING THE FACT AND CIRCUMSTANCES OF THE CASE. DECIDE THAT, WHETHER THE ANTICIPATORY BAIL SHOULD BE GRANTED OR NOT”.

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