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Anticipatory Bail in India

July 04, 2024 | Dispute Resolution

Discover about Anticipatory Bail in India, including the eligibility criteria, application process, and other conditions laid out by the Supreme Court.

In India, Anticipatory Bail is defined under section 438 of the Code of Criminal Procedure wherein it allows an individual to apply for bail in anticipation of arrest. Any individual under the impression that they might get arrested in case of non-bailable offence, can utilize this legal remedy for their release from detention. Granting an Anticipatory Bail is at the discretion of the court.

Eligibility for an Anticipatory Bail

Any individual under the apprehension that they might get arrested in a non-bailable offence may file an application for obtaining an Anticipatory Bail in the concerned court. Apart from the accused, a suspect or a witness in a case may also file an Anticipatory Bail.

Process of Applying for an Anticipatory Bail

  • First and foremost, the person seeking an Anticipatory Bail should appoint an advocate to aid them in drafting the application. The application will be drafted considering the facts and circumstances provided by the Individual.
  • Once the application is finalized, the person/applicant is required to sign an affidavit as well as a “Vakalatnama” in favor of the advocate, allowing him/her to file the application and appear before the Court.
  • Once the application is filed in the competent court, the advocate should make submissions on behalf of the applicant before the Hon’ble Court to obtain an Anticipatory Bail.
  • The Hon’ble Court, after examining the application, sends a notice to the concerned police station seeking a status report from the concerned police official or investigating officer in relation to the Anticipatory Bail application.
  • After hearing the parties, the Hon’ble Court on merits of the case decides whether an Anticipatory Bail should be granted or not. If the court is satisfied with the reasons provided in the application, it may grant an Anticipatory Bail to the applicant.
Note: In case, if an F.I.R (First Information Report) is filed against the person, the Investigating Officer generally sends a notice of arrest within 7 days. In such case, the applicant may apply for an Anticipatory Bail within the expiry of 7-day period.

A Copy of an F.I.R must be submitted along with the Anticipatory bail application in the Competent Court.

Grounds of Obtaining Anticipatory Bail:

The Grounds for obtaining an Anticipatory Bail depends upon various factors such as:

Nature and Gravity of Offence: The court, after examining the nature of the offence, shall decide whether an Anticipatory Bail should be granted or not.

Antecedents of the Accused: The court, after examining the history of the accused, shall decide to grant an Anticipatory Bail or not.

Possibility of Accused fleeing from Justice: If the individual accused of a non-bailable offence is co-operative in the court proceedings, the chances of getting an Anticipatory increase. However, if in case, the court is under the apprehension that the accused might flee from the country, an Anticipatory Bail may not be granted.

Likelihood of the Accused tampering with evidence:
Anticipatory Bail shall not be granted wherein the court is of the opinion that the accused might tamper with the evidence, if released on bail. However, in case the Court feels that the accused might not tamper the evidence by examining his/her track record, then an Anticipatory shall be granted.


Conditions imposed by the Hon’ble Court while granting an Anticipatory Bail

The conditions generally imposed by the court are based on the facts of the case. Some of the conditions are enlisted below:

  • It is the duty of the individual to make themselves available for interrogation by a police official as and when required.
  • The Individual must not directly or indirectly make an inducement, threat or promise to any other person acquainted with facts of the case as to dissuade them from disclosing them to the court or to a police officer.
  • The Individual is not entitled to leave the country without obtaining prior approval from the competent court.
  • The individual shall not commit an offence like the offence which they are accused or suspected of.
  • In case there is any violation of the abovementioned conditions by the accused, the Anticipatory Bail shall be revoked by the Hon’ble Court.

Duration of an Anticipatory Bail

Anticipatory Bail is mostly valid until the final disposal of the case. However, the court may cancel anticipatory bail if the accused violates any of the conditions imposed by the court while granting the Anticipatory Bail.


Approaching the Appropriate Court for seeking Anticipatory Bail

Individuals seeking Anticipatory Bail are required to file their applications before the Hon’ble Sessions Court or before the Hon’ble High Court. In view of various judgements, the applicants are directed to approach the sessions court first.

If the application for anticipatory bail is denied by the Sessions Court, the individual may file a fresh application in the High Court seeking anticipatory bail as a matter of right. However, if the application is denied by the Hon’ble High Court, then in such a case, the individual can approach the Hon’ble Supreme Court by way of filing a Special Leave Petition (SLP). However, it is at the discretion of the Hon’ble Apex Court to allow such an application.


Conclusion

Anticipatory Bail does not shield an individual from arrest but rather safeguards them from being detained. It serves as a measure to secure the personal freedom of an individual, without absolving them from their legal responsibilities stemming from any alleged wrongdoing. To obtain an Anticipatory Bail, the applicant must provide “sufficient reasons to believe” that they may face arrest in relation to a non-bailable offence. Hence, this legal provision acts as a crucial safeguard against unjust and arbitrary detention.  

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