KATHMANDU, Sept 24: An anticipatory bail is a legal provision that allows a person to seek bail in anticipation of being accused or arrested for a non-bailable offense, providing protection from immediate arrest if there is a reasonable belief of potential arrest due to allegations of a crime.
In South Asia, this is called advance bail or pre-arrest bail. An anticipatory bail is usually granted in non-bailable offenses. There is no legal provision of advance bail in Nepal. However, the court of Nepal has ordered not to arrest the petitioner in the name of investigation in one of the cases from the request for injunction.
Our neighboring countries, India and Sri Lanka, have anticipatory bail laws. Similarly, although there is no legal provision regarding anticipatory bail in the laws of Pakistan and Bangladesh, the provision of anticipatory bail has been provided by the courts there.
Anticipatory bail is granted in suspected or non-bailable offenses where there is suspicion or reasonable suspicion that a person may be arrested under the following circumstances:
A non-bailable offense is usually a felony and may be punishable by death, life imprisonment, or imprisonment for more than three years or more than seven years. For example: manslaughter and criminal treachery.
Anticipatory bail is not granted in the case of rape of minors below 12 years of age, gang rape of minors below 16 years of age. A person who is likely to be arrested in the future may apply to the District Court or the High Court for anticipatory bail depending on the seriousness of the offense.
Depending on the seriousness, an application can be made to the District Court or the High Court.
The basis and conditions for granting anticipatory bail are as follows
(a) It is a special protection afforded to persons who are likely to be innocent.
(b) The applicant must have a reasonable belief that he may be arrested for a non-bailable offense.
(c) The applicant must confirm that his arrest is not necessary for investigation.
(d) If there is a possibility of malice, or malicious prosecution on the part of the police.
(e) If the action was taken with intent to injure or humiliate the petitioner.
(f) The applicant must be willing to cooperate during the investigation and appear for questioning before the police as required.
(g) The petitioner must ensure that evidence is not destroyed or interfered with in the collection of evidence.
(h) The petitioner should not have directly or indirectly induced, or threatened any person familiar with the facts of the case not to disclose such particulars to the court or any police office.
(i) For this purpose, the past criminal record of the applicant may be looked into whether he has previously been sentenced to prison for any serious offense by the court.
(j) The court must be satisfied that the applicant will not flee the country without judicial process or leave the court.
To safeguard individual freedom and prevent possible misuse of legal proceedings, it seems necessary to introduce a provision for anticipatory bail in Nepal.