According to Indian Criminal law, an arrest can be made by a citizen, a police officer or a Magistrate. An arrest is the act of capturing or detaining a person and taking them into custody, usually because they have been doubted of committing or planning a crime. The object of arrest of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive sentence.
The money or some form of property which is deposited to a court in order to secure the release of a person (who is suspected to have committed a crime) who has been arrested is called Bail. It is, in other words, an understanding that the suspect will return for their court appearance and hearing.
Anticipatory bail is based on the principle of “BAIL AND NO JAIL”. The courts define it as ‘bail in anticipation of arrest’ which means that anticipatory bail is issued even before a person is arrested as a direction to release a person on bail. In order for the anticipatory bail to be granted the court must be satisfied that the person seeking it has a reason to believe that he is likely to be arrested for a non-bailable crime. The Court grants ‘anticipatory bail’ to make an order that in the event of arrest, a person shall be released on bail.
The object behind anticipatory bail is to ensure that a person is not being detained or arrested unjustly and being deprived of his liberty during the pendency of the criminal proceedings against him.
Non-bailable offences are serious offences where a person cannot ask to be released on bail as a matter of right. Upon the arrest of the person for a serious offence, only the courts can grant bail.
The police cannot release anyone on bail in case of a non-bailable offence and so the arrested person is required to make an application for bail before a magistrate or court.
The court shall decide whether he/she can be allowed to be let out on bail or not after consideration of factors such as the seriousness of the offence, the chances that the accused will interfere with the investigation by tampering with evidence or threatening witnesses or if the accused is likely to go into hiding or leave the country to escape.
When any person has a reason to believe that there is a chance that he/she may be arrested on false or trumped charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
As soon as the person has a valid reason to believe that he/she may be arrested for a non-bailable offence, he/she should consult a good lawyer for the grant of an anticipatory bail.
The Lawyer will then file a “vakalatnama” in the appropriate district court with the required anticipatory bail petition. The Court shall then notify the public prosecutor about the petition for anticipatory bail filed by the applicant. The public prosecutor is granted sometime to file objections on the same. Thereafter, a hearing is appointed for the matter to decide the outcome of the petition post arguments of both sides.
If the lower courts deny the application for anticipatory bail, the person seeking anticipatory bail has a right to appeal in the High Court and thereafter in the Supreme Court.
Once, the bail is granted there are few formalities that have to be followed before the person is finally out on bail. The Court also has the power to put some conditions and restrictions on the same.
The conditions that may be imposed are as follows:
The High Court or Court of Session may direct the police to arrest the person and cancel the anticipatory bail if it is brought to the notice of the court, either by the prosecution, through the police or the complainant or the witness, depending on the circumstances, that the person who had been granted anticipatory bail did not adhere to the conditions ordered by the Court.