Anticipatory Bail in India: Addressing Misuse of the Criminal Justice Process?

Abstract

Under the Criminal Law in India an individual can seek bail from a court before being arrested. This is referred to as “Anticipatory Bail” and although this does not prevent a criminal case from being filed or progressing through investigation and adjudication, it does prevent the individual from being taken into police custody. This novel concept is often justified on the grounds that it prevents the misuse of the criminal process by one party against its rivals or that it makes it more difficult to use the criminal process for extortion. This paper examines the development of this concept in India, its increasing use over the last few decades, and how it might operate as a window into the operations of the criminal investigation and adjudication processes in India. The paper also examines how this “corrective” compares to methods in other jurisdictions to address misuse of the criminal process and what alternatives or reforms might be considered to address the concerns associated with anticipatory bail in India.

Keywords: India, Criminal Law, Criminal Procedure, Comparative Law, Comparative Criminal Procedure, Arrest, Bail

JEL Classification: K33, K14, K42