Edited by Jacqueline E. Ross and Stephen C. Thaman
Chapter 3: Anticipatory bail in India: addressing misuse of the criminal justice process?
The Indian criminal justice system allows for the granting of bail to a person in anticipation of arrest (generally referred to as ‘anticipatory bail’).1 In essence, a court can issue an order, prior to an arrest, stating that a person is to be immediately released on bail should that person be arrested for the offenses listed, or related to those listed, in the order.2 This prevents a person from being taken into police custody, even for a few moments, while allowing a criminal investigation to continue. This unique concept is used with some regularity in India, but is rarely found, if at all, outside of South Asia.3 Nonetheless, anticipatory bail’s ubiquity and importance in India is highlighted by the number of Government reports, reform proposals, and Supreme Court of India decisions on it, which in turn suggests that this humble provision has greater impact than might appear at first blush. This chapter explores the development and operation of anticipatory bail in India in order to gain a deeper understanding of it and to provide a window into the investigative and adjudicative processes of the Indian criminal justice system.Before embarking on that journey it may prove useful to highlight some fairly typical examples of when anticipatory bail is requested and to discuss, in a thumbnail manner, some of the key institutional features of the Indian civil and criminal justice systems that led to its development.
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