The practice of bail has a lengthy history and is firmly rooted in both American and English law. The Bharatiya Nagarik Suraksha Sanhita, 2023 has for the first time defined bail¹ as "the release of a person accused of or suspected of the commission of an offence from the custody of law upon certain conditions". There are three different kinds of bail: anticipatory, interim, and regular. Due to its exceptional nature, the authority is only granted to the highest levels of the legal system, such as the High Court and a Court of Session.2. There used to be disagreements among Indian High Court rulings on a court's authority to issue anticipatory bail. The majority believed that the previous Criminal Procedure Code did not grant the court this authority. After the Law Commission identified this flaw in its 41st report, Section 438 was introduced in The Code of Criminal Procedure which is now Section 4823 of the BNSS. The term 'anticipatory bail" is a practical way to indicate that someone can get bail before arrest. Any bail order can only take effect at the moment of arrest since it 'sets at liberty a person detained or imprisoned, on security being taken for his appearance'.
In this blog, we will deal with the concept of cancellation of anticipatory bail and analyse whether it is a boon or a bane for justice. BOON FOR JUSTICE: It is a settled legal principle that "bail is a rule and jail is an exception"5. This principle, however, is not always applicable. Generally speaking, the order shouldn't be granted. Since the facts of every case are different, courts must be given some leeway if they are to be meaningful in granting discretionary power. While there are no strict and rigid rules regarding the denial of anticipatory bail, there are several general grounds that can be recognized. These include: avoidance or effort to escape the due process of law; misuse of the concession given to the accused in any way; and interference or attempt to interfere with the proper administration of justice. A further justification for cancellation bail is the court's satisfaction with the evidence presented on the accused's potential for absconding. A crucial balance between upholding justice and preserving individual liberty is achieved by the cancellation of the anticipatory bail. When anticipatory bail is given to the accused, victims may believe justice is not being done. Victims and their relatives may feel relieved that justice has been served when anticipatory bail is cancelled. It guarantees that people are held responsible for their deeds and that powerful people do not abuse their position of authority to avoid accountability and imprisonment. For example, the Supreme Court in Sushila Aggarwal's case supported the revocation of anticipatory bail given to an accused person in a case involving dowry harassment because the accused man intimidated and coerced his brother, a significant witness against him. It can be a boon for justice as it is not an end in itself, but a means to an end. BANE FOR JUSTICE: The accused's personal freedom as guaranteed by Article 21 of the Constitution is restricted by the ban on anticipatory bail under Section 482 of the BNSS. In the case of State (Delhi Admn.) v. Sanjay Gandhi', the Court observed that "cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law". Because it denies the accused their personal freedom, cancellation of anticipatory bail is a severe decision. In order to allow the accused to keep his freedom by making use of the bail concession during the trial, it should not be automatically revoked once it has been granted without taking into account whether any new circumstances have made it unsuitable for a fair trial. Cancellation may be arbitrary in several situations, which may result in unjust and inconsistent outcomes. Furthermore, if anticipatory bail is revoked, the wrongfully framed accused may be held for an extended period, which would postpone the trial and, eventually, justice.
CONCLUSION: Arrest for non-bailable offenses inevitably results in police custody. An anticipatory bail order is a guarantee against police detention after an arrest for an offense or offenses for which the order is made. It is a pre-arrest legal procedure that, in contrast to a post-arrest order of bail, stipulates that the person to whom the order is granted will be freed on bond if he is later arrested on the charge for which the order was issued. Anticipatory bail must be given if there is no reason to believe that the applicant will flee, and it cannot be imposed as an unbreakable rule that it cannot be granted until the proposed indictment seems to be motivated by mala fides. When determining whether an order granting bail was appropriate, it is important to consider if the discretion was used arbitrarily or improperly. The question is whether the bail order irrational, unlawful, or perverse. When deciding whether to grant or deny anticipatory bail, courts should generally be led by factors like the nature and seriousness of the offenses, the role assigned to the applicant, and the case's facts. Whether or not to grant is a matter of discretion; similarly, the facts of the case will determine whether or not extra restrictions should be imposed, and the court will have the final say on this. The cancellation of anticipatory bail can be a boon or a bane for justice. It can stop evidence from being tampered with, but it can also violate someone's right to privacy and establish guilt. It ought to be used carefully and cautiously, keeping in mind the harmony between individual freedom and the general welfare. It is a question of judicial discretion, which ought to be used to guarantee that justice is done by taking into account the particular facts and circumstances of each case.
¹ Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023, § 2(b) (India). 2 Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366. Supra note 2. 5 Prem Prakash v, Union of India, (2024) 9 SCC 787. Sushila Aggarwal vs State (NCT of Delhi), AIR 2020 SC 831. (1978) 2 SCC 411.
BY- SHIVIKA AGARWAL AND SOHAM MISHRA
(4th Year Law Student at Rajiv Gandhi National University of Law, Patiala & 4th Year Law Student at Faculty of Law, Jamia Millia Islamia, Delhi)