Anticipatory Bail Application : How to apply for Anticipatory Bail


Anticipatory Bail Application : How to apply for Anticipatory Bail

Anticipatory Bail in India | Law House |
What is a Cognizable and Non-Cognizable offence in India?

What is Anticipatory Bail

Anticipatory bail is granted under section 438 of the Criminal Procedure Code when a person has the apprehension of arrest in criminal cases. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment has been passed in his case. Depending on the gravity of the allegations, a person may be able to avoid arrest, however, a person can apply for anticipatory bail even before a First Information Report (FIR) has been filed against him, on anticipation that he has reasonable grounds to believe to be arrested.

In cases of criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused person.

Anticipatory Bail Application

Anticipatory bail is applied for in anticipation of arrest. It is a direction to release a person on bail, issued before the person is arrested. If the person has a reason to believe that he might get arrested for a crime for which he has been falsely implicated, then he has the right to apply for this type of bail. One may apply for anticipatory bail after learning that a criminal complaint has been filed against him. It is also important to know whether, in cases where the FIR has been filed, the offence is bailable or non-bailable. Since in the former bail is granted as a matter of right, the grant of bail in the latter is based on several contingencies.

How to Apply for Anticipatory Bail

For granting of anticipatory bail, Sessions Court or High Court can be approached. As soon as the person is under the apprehension that a complaint is filed against him for any of the following offence –

  • Criminal breach of trust (Section 406 IPC), 
  • Mischief by destroying or moving, etc., a landmark fixed by a public authority (Section 434 IPC),
  • Husband or relative of husband of a woman subjecting her to cruelty (Section 498A IPC),
  • Any other non-bailable offence.

In such cases, a person should consult a criminal lawyer who will help him in getting anticipatory bail. The lawyer will file a petition for anticipatory bail along with the vakalatnama before the appropriate court. After filing the petition a hearing is scheduled. Though the provision of Section 438 of Code of Criminal Procedure does not provide for sending of notice regarding the Public Prosecutor but the Supreme Court in the case of Gurbaksh Singh Sibbia vs. State of Punjab held that a notice should be issued to the Public Prosecutor or the Government advocate before passing a final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the court may pass such order, issuing a notice to the Public Prosecutor by making it returnable and may pass a final order after hearing both the sides. 

After the amendment of 2005 in the criminal laws, it has been made mandatory to hear Public Prosecutor in the case of Anticipatory Bail. If the sessions court rejected the anticipatory bail then the application for anticipatory bail can be filed in High Court. The court can put certain conditions and restrictions while granting anticipatory bail.

Anticipatory Bail Conditions

  • A condition that the person shall make himself available for interrogation by a police officer as and when required;
  • A condition that the person 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 him from disclosing such facts to the Court or to any police officer;
  • A condition that the person shall not leave India without the previous permission of the Court;
  • Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

Procedure of Anticipatory Bail When FIR is Filed

When an FIR has been filed, the investigating officer will send a notice of arrest. As soon as the notice of arrest is received the person should file an application of anticipatory bail with the help of best criminal lawyers. The lawyer, in this case, will follow the above-stated procedure for grant of anticipatory bail.

Procedure of Anticipatory Bail When FIR is Not Filed

  • The public prosecutor will talk to the police officer concerned
  • Since no FIR has been filed, the prosecutor will be of the view that there are no grounds for granting anticipatory bail
  • The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail
  • The lawyer will then make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest you/your family
  • In all likelihood, the judge will grant this plea
  • An order will be passed accordingly. This is called the ‘notice bail’ commonly.
  • If the bail application is rejected, you could apply to the High Court.
  • If the High Court also rejects the bail, you could apply to the Supreme Court.

Cancellation of Anticipatory Bail

Section 439 of CrPC deals with cancellation of anticipatory bail. Though there is a specific provision in the code it is implicit that a court which has the power to grant the anticipatory is also empowered to cancel bail or recall the order related to bail upon appropriate consideration of facts. Anticipatory bail should not be abused in any manner as it is a special privilege given to a person who is under reasonable apprehension of his arrest. 

Even if there is no specific provision regarding the cancellation of anticipatory bail still the court has the power to cancel the bail owing to the inherent powers of the high court and it can be invoked under special or exceptional cases. The power to cancel the regular or anticipatory bail can be invoked only when court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Difference between Regular Bail and Anticipatory Bail

Regular bail is granted to a person after he is arrested by the Indian police for a crime he is suspected to have committed. When the police receive a complaint and if they have gathered sufficient evidence which will support their arrest, they arrest the suspect and he is remanded in police custody for further investigation and after that suspect sent in judicial custody. In the case of a regular bail, the person may approach a trail court, Sessions, High or Supreme Court to be let out of prison until the trial has concluded.  A certain amount of money or assets are pledged to the court by the accused and based on this surety, the Court may or may not grant him bail. The condition is that the person must be present for the trial when they commence and are on-going and will not flee from the country or unduly influence other people associated with the trial.

If the Court finds that the accused is not trustworthy and may not appear for the trial or may commit further crimes while out of prison on bail, it has the authority to refuse the bail. The sums pledged to the court in exchange for the bail are set at different levels for different people. The amount is mainly decided on the severity of the crime, the financial status of the accused and other facts related to the case.

Anticipatory Bail:When a person suspects that he/she may be arrested for a non-bailable offence under the false charges filed by another person or legal entity, usually a bail is arranged for beforehand. This is an anticipatory or preventive move and is called an anticipatory bail and is obtained before an arrest is made.

So the difference in these two types of bails lies mainly in when they are applied for by the lawyer. While the anticipatory bail is applied for and granted before an arrest is made, the regular bail is applied for and granted after an arrest is made and the accused has spent some time in jail.

Bailable and Non-Bailable Offences:

Depending on the kind of offence that the police have registered, a person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC).

Sec 436 provides that when any person other than a person accused of a non-bailable offences is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail.

[Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.]

Anticipatory Bail in India | Law House |
What is a Cognizable and Non-Cognizable offence in India?

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