Anticipatory Bail

Anticipatory Bail

How to get an anticipatory bail?

An anticipatory bail is applied for ‘in anticipation arrest’. It is a direction to release a person on bail, it is issued even before the arrest is made. On the off chance that the accused has motivation to trust that s/he might be captured on allegation of having conferred a non-bailable offense, at that point s/he has the privilege to apply for an expectant safeguard in the Sessions Court or High Court.

It is likewise vital to know whether, in situations where the FIR has been recorded, the offense is bailable or non-bailable. While in the previous bail in conceded as an issue of right,  allow of safeguard in the last depends on a few possibilities.

However, it is settled law that the anticipatory bail should only be granted under exceptional circumstances and that the court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. The Hon’ble Supreme Court1 held that Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested”.

The High Court or the Court of Sessions take into consideration many factors before granting an anticipatory bail viz. nature and gravity of the accusation; the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; the possibility of the applicant to flee from justice; and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Moreover, the Court has a power to put some conditions and restrictions such as that the person shall make himself available for interrogation by a police officer as and when required; that the person shall not, directly or indirectly, victimize any person acquainted with the facts of the case; that the person shall not leave India without the

previous permission of the Court; any such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

Hence, to conclude, the provision to introduce anticipatory bail seems laudable and puts up an image that this country cares about human rights of its citizens but it must be taken care that this also doesn’t become the escaping ground for culprits.

A brief history-
The concept of anticipatory bail was introduced for the first time by the 41st report of The Law Commission of India in 1969 when a need was felt to enable our courts to grant a bail which allows a person to seek bail in anticipation of an arrest when he/she is accused of committing a non-bailable offence. The purpose of anticipatory bail is in line with Article 21 of our constitution that no person should be confined in any way unless proven guilty. And hence, it was incorporated as a discretionary power of court under Section 438 of The Code of Criminal Procedure, 1973 while obtaining a regular bail is a matter of right in non-bailable offences but after the arrest of a person.

How to apply for anticipatory bail?

  • When the FIR is not filed:
  • The public prosecutor will converse with the cop concerned.

    Since no FIR has been recorded, the PP will be of the view that there are no reason for allowing anticipatory bail.

    The judge will consent to this and your legal advisor will be verbally made a request to pull back the anticipatory bail.

    The legal advisor will then make an oral supplication for seven days pre-capture see in the event that the police defines an expectation to capture you/your family.

    More than likely, the judge will allow your supplication.

    A request will be passed in like manner. This is known as the 'notice bail' generally.

    In the event that the bail application is dismisses in the Sessions Court, you could apply to the High Court.

    On the off chance that the High Court likewise rejects the bail, you could apply to the Supreme Court.

  • When the FIR has been filed:
  • In case, the FIR is lodged, the investigating officer will send a notice of arrest.
    As soon as this notice is received, one should apply for an anticipatory bail following the same procedure as stated above.


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