ANTICIPATORY BAIL
Aryaman Shivendra Pratap

What is anticipatory bail?

An anticipatory bail is the bail which is granted to a person before he is arrested. It is made in situations wherein the person apprehends that he or she might be arrested in the near future. It is different from ordinary bail wherein bail is granted after a person has been arrested. The provision for anticipatory bail is laid down under Section 438 of the Code of Criminal Procedure, 1973. The power to grant this bail is vested with the session’s court and the high courts. It became a part of CRPC in the year 1973, after the 41st law commission report of 1969 recommended the inclusion of the aforementioned provision. 

First it was given in the landmark case of Burbaksh Singh Sibbia v. State of Punjab, five bench-judge led by CJI Y.V Chandrachud, wherein Chandrachud J ruled that S.438 (1) is to be interpreted in the light of article 21 of the constitution which talks about protection of life and personal liberty. 

Points to be kept in mind before getting anticipatory bail:

  1. Whether the offence is bailable or non-bailable. 
  • Bailable offence means an offence in which bail can be granted to the arrested person
  • Non-bailable offence means an offence for which no bail can be granted after the person is arrested. 
  1. Person has reasonable doubt that a false case is being made against him, and can apply for anticipatory bail. 
  2. Court will only grant this bail depending on the seriousness of the offence. In addition to these points, the court will see whether the person was previously convicted of any other cognizable offence.

Steps to get anticipatory bail:

  1. Immediately get in touch with a good criminal lawyer for anticipatory bail and pre-arrest notice, after the complaint or FIR is filed.
  2.  Then draft an anticipatory bail application, stating the reasons why you need it along with the lawyer and sign it.
  3. The application must also contain an affidavit in support of it.
  4. A copy of an FIR along with other relevant documents must also be attached.
  5. The application should be filed in the appropriate session’s court or high court.
  6. A person along with the lawyer must be sent to the court for the hearing of the application.
  7. The protection under it is available to a person, till the end of the trial.

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After the above procedure there can be two instances that may prevail

  1. When no FIR has been filed
  • In such  a situation there will be no grounds for granting a bail
  • The lawyer must request the court to grant the client a pre-arrest notice.
  • If granted, use this pre-arrest notice to apply for anticipatory bail.
  • If the bail application is rejected, then the said accused person can apply to the High Court or the Supreme Court.
  1. When an FIR has been filed
  • The officer who would be in charge will send you a notice of arrest seven days before arresting you.
  • In this particular time period the accused person can file for anticipatory bail.
  • Filling of the FIR is not a precondition for filing for an anticipatory bail.

Restrictions that can be put by the court:

  1. Person seeking anticipatory bail would be available when the interrogation is being conducted by the police.
  2. Person will not induce directly or indirectly any person who is aware of the facts of the case.
  3. Without previous permission of the court, the person will not leave India.
  4. Any other condition the court deems fit.

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