Anticipatory Bail Under BNSS
Anticipatory Bail Under BNSS: Explanation in Detail
1. What is Anticipatory Bail?
Anticipatory Bail is a legal provision where a person apprehending arrest for a non-bailable offense can apply to the court for bail in advance, i.e., before being arrested. This prevents unnecessary detention and safeguards personal liberty.
2. Background: The B.N. Srikrishna Committee (BNSS)
The B.N. Srikrishna Committee was constituted in 2013 to review the criminal justice system in India.
It was chaired by Justice B.N. Srikrishna, a former Supreme Court judge.
One of the key focuses was to review the provisions of bail and anticipatory bail under the Code of Criminal Procedure (CrPC).
3. BNSS Committee’s Recommendations on Anticipatory Bail
The committee made important observations and recommendations on anticipatory bail to balance personal liberty and the need for investigation and public order.
Key recommendations:
Restrict anticipatory bail in serious offenses, especially where the accused may tamper with evidence, influence witnesses, or pose a threat to society.
Anticipatory bail should not be granted as a matter of course or merely on the apprehension of arrest; courts should assess the prima facie evidence and the likelihood of the accused fleeing or tampering with evidence.
Courts should consider the nature and gravity of the offense, past criminal record, and whether the accused has cooperated with the investigation.
Emphasis on judicial discretion: The power to grant or reject anticipatory bail should be exercised cautiously.
For serious offenses (e.g., offenses punishable with imprisonment of seven years or more), anticipatory bail should be granted only in exceptional cases.
4. Nature and Scope of Anticipatory Bail as per BNSS
| Aspect | BNSS Recommendation / View |
|---|---|
| Purpose | Protect liberty from arbitrary arrest, but not to shield offenders from prosecution. |
| Scope | Limited, especially in grave offenses. |
| Judicial Approach | Courts must examine facts carefully before granting anticipatory bail. |
| Limitations | Should be denied if evidence suggests guilt, risk of witness tampering, or likelihood of flight. |
| Balance | Protects individuals’ liberty while safeguarding public interest and investigation. |
5. How BNSS Recommendations Affect Legal Practice
Courts should no longer treat anticipatory bail applications as routine.
Requires detailed reasons to grant anticipatory bail.
Encourages courts to consider the interest of justice and potential misuse of bail.
Calls for effective checks against false claims of harassment or victimization.
6. Important Case Law on Anticipatory Bail in Line with BNSS Principles
(i) S. Anvar P.V. v. P.K. Basheer & Ors. (2014)
The Supreme Court clarified that anticipatory bail is not a matter of right.
The court must examine the facts and circumstances of the case.
Emphasized that anticipatory bail should be refused if the person is likely to hamper the investigation.
(ii) Gurbaksh Singh Sibbia v. State of Punjab (1980)
Landmark case that recognized anticipatory bail under Section 438 of the CrPC.
Held that anticipatory bail is a discretionary remedy.
Courts must balance personal liberty with the interest of justice.
(iii) Arnesh Kumar v. State of Bihar (2014)
Supreme Court directed police to follow strict guidelines before arresting.
Though not about anticipatory bail directly, it underscores the need to avoid arbitrary arrests.
BNSS’s approach aligns with this, promoting restraint in arrest and bail decisions.
(iv) Sanjay Chandra v. CBI (2012)
Held that anticipatory bail can be refused if the accused is likely to influence witnesses or obstruct investigation.
Courts should assess the prima facie evidence before granting bail.
7. Summary
| Element | Explanation |
|---|---|
| Definition | Bail granted in anticipation of arrest. |
| BNSS View | Restrict anticipatory bail for serious offenses; careful judicial scrutiny. |
| Judicial Role | Discretionary, fact-specific, and not automatic. |
| Key Factors | Nature of offense, past record, likelihood to flee or tamper with evidence. |
| Goal | Balance individual liberty with public interest. |
| Important Cases | Sibbia, Anvar PV, Sanjay Chandra, Arnesh Kumar. |
8. Practical Implications
Police cannot arrest suspects arbitrarily; anticipatory bail applications must be considered seriously.
Courts are encouraged to impose conditions while granting anticipatory bail to prevent misuse.
Defendants should provide convincing reasons why anticipatory bail is necessary.
Accused in serious crimes should not expect anticipatory bail as a matter of course.
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