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CHAPTER 5: ANTICIPATORY BAIL OUTSIDE INDIA

 

The
concept of anticipatory bail has been borrowed from India by various countries.
The courts in Pakistan and Bangladesh operating under the criminal procedure
code exercise their inherent power s to grant anticipatory bail to its people.
While in Sri Lanka it has received statutory recognition.

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Sri Lanka

 

Sri
Lanka statutorily recognizes the concept of anticipatory bail under section 21
of the Bail Act No. 30 of 1997 which states whenever any person has reason to
believe that the may be arrested on account of his being suspected of having
committed, or been concerned in committing, a non-bailable offence he may with
notice to the officer in- charge of the police station of the area in which the
offence is alleged to have been committed, apply to the Magistrate having
jurisdiction over the area in which such offence is alleged to have been
committed, for a direction that in the event of his arrest on the allegation
that he is suspected of having committed, or been concerned in the commission
shall fix a date not later than 7 days by giving notice of such date to
officer-in-charge  of police station and
the applicant. On the date fixed for the inquiry, the court shall pass an order
of granting or rejecting the application after giving opportunity of being
heard to the parties.1

 

While
granting an order of anticipatory bail the court shall specify conditions on
which the accused shall be released on bail including conditions prohibiting
the applicant from leaving Sri Lanka or requiring the applicant to surrender
his passport to court with notification to the Controller of Immigration and
Emigration and the manner in which bail shall be furnished by the applicant at
the time of his arrest.2

 

Where
a person is released on bail in pursuance of an order made granting
anticipatory bail,. Such person:

          (a) Shall make himself available for
interrogation by a police officer, as and when required, provided that such
interrogation shall not under any circumstances whatsoever be between 6 p.m. in
the evening and 6 a.m. in the morning;

          (b) Shall not directly or indirectly
make any inducement, threat or promise to any person acquainted with the facts
of the case, so as to dissuade that person from disclosing such facts to the
court or to any police officer;

          (c) Shall not directly or indirectly
tamper with any evidence in the case, or otherwise obstruct the course of
justice.3

 

The
fact that an application made for anticipatory bail is pending before any court
shall not affect or prejudice, the right of any police officer to interrogate
the applicant with respect to any offence specified in the application, or the
right of the officer in charge of a police station to apply to that court or
any other court having jurisdiction in the case, for a warrant for the arrest
of the application for any such offence or the power of any such court to make
any order (including an order for detention) on any such application for a
warrant.4

 

The
court on an application made by officer-in-charge the court may issue a warrant
requiring the presence in court, of the applicant in whose favour such order
had been made, for reasons which shall be recorded by such Magistrate. The
Magistrate may, for reasons which shall be recorded, make such order as he
deems appropriate with regard to the detention of such person, provided, that
the Magistrate may at any time revoke or vary such order for reasons to be
recorded.5

 

These
provisions are to have effect notwithstanding any conflict of inconsistency with
any other law in operation.6

 

Comparison with Indian Laws

 

The
Sri Lankan legislature has enacted a special legislation providing protecting
of anticipatory bail. The law relating to anticipatory bail was based on Indian
law and it cannot be used to protect people accused of committing fraud and
other illegal activities.

The
law has been developed on the basis of Indian Laws and continuous reliance is
made on Indian cases.

 

However,
there are many differences between Indian and Sri Lankan Act, though the
principles are same but there lies distinction in procedural aspect. The Indian
laws gives this power only to the High Court or the Court of Session but under
the Sri Lankan Act the application needs to be made before the concerned
Magistrate.

 

Also
the Sri Lankan Act provides for giving notice to the officer-in charge of the
police Station and providing them with opportunity of being heard whereas there
exists no parallel under the Indian Act.

 

Kenya

 

The
criminal procedure code does not provide for provision of anticipatory bail.
Whereas, the courts have relied upon Section 84 of the Constitution that
provide for enforcement of the protective provisions in the Constitution as it supersedes
the criminal code.7

 

The
right to anticipatory bail has to be called out where there are circumstances
of serious breached by an organ of the State of a citizen’s fundamental
rights…… Anticipatory bail can only be granted upon terms that are appropriate
under the circumstances of each case.8

 

Section
84 if a person alleges that any of the provision of the Constitution has been,
is being or is likely to be contravened in relation to him (or in case of a
person who is detained, if another person alleges a contravention in relation
to the detained person), then without prejudice to any other action with
respect to same matter which is lawfully available, that person (may apply) to
the high court for redress.”9

 

The
power to grant anticipatory bail can only be granted in cases where there
exists reasonable apprehension to the accused that he would be deprived of his
liberty for which he has to prove specific incidence and not to make mere
allegations.10

 

Therefore,
the courts in Kenya have been granting protection against arrest to the persons
that fear arrest and illegal confinement in contravention to the rights of the
people as provided under the constitution.

 

 

 

Other Countries

 

In
other countries like Pakistan and Bangladesh the higher courts while exercising
its inherent power under their respective Criminal Procedure Code have grated
protection under the anticipatory bail. However, while dealing with these
powers the courts have relied upon the development of law in India from where
the concept is borrowed by these countries. The object of this provision is to
protect the interest of innocent who have been harassed by few.

 

There
is no such provision in countries like United State of America, United Kingdom,
Australia, and South Africa wherein bail is only provided after the arrest of
the accused.

 

 

1 Section 21

2 Section 22

3 Section 24

4 Section 25

5 Section 26

6 Section 27

7 Zakayo Kimutai Kimeto v. Republic 2006 e(KLR)

8 W.Njuguna v.R.2004 1 KLR 520.

9 Victor Kyalo Mutua v.Republic 2004 e(KLR)

10 Devans Chileo Mwangade v.Attorney General 2006 e(KLR)

 

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