Legal recipe to file an Anticipatory Bail

What is an Anticipatory Bail?

In Indian Criminal Law, an arrest may be made by either a policeman or a magistrate. A person is arrested when they are detained or captured. This usually happens because there has been suspicion that the individual may have committed or planned a crime. The main purpose of arrest is ensure that the accused appears for trial, and is available to receive a sentence if he is found guilty. Bail is when the money or property is deposited with a court in order to release a suspect (who has been arrested) from custody. Even when on Bail, the accused is required to appear in court and be heard.

An Anticipatory Bail comes into the scenario when an individual has apprehension of his/her arrest. In India, it is granted under Section 438 of the Criminal Procedure Code. Anticipatory bail is based on the principle of “ BAIL AND NO JAIL” . The courts define it as & lsquo 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. 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 & lsquo anticipatory bail' to make an order that in the event of arrest, a person shall be released on bail. The object of 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.
 

What are Non-Bailable offenses?

Non-bailable offenses are serious offenses where a person cannot ask to be released on bail as a matter of right. Upon the arrest of the person for a serious offense, only the courts can grant bail.

The police cannot release anyone on bail in case of a non-bailable offense 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 offense, 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.

Who can apply for anticipatory bail?

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.

How to apply for anticipatory bail?

The procedure to apply for Anticipatory Bail has been discussed below:-

1. Engage a Lawyer

As soon as the person has a valid reason to believe that he/she may be arrested for a non-bailable offense, he/she should consult a good Criminal Lawyer for the grant of 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 some time 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.

2. Right of Appeal

If the lower courts denied 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.

What are the conditions that the Court may impose?

Once, the bail is granted few formalities 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:

1. the person shall make himself available for interrogation by the police officer as and when required

2. the person shall not, directly or indirectly, make any threat or promise to any person who is aware of the facts of the case so as to discourage him from disclosing such facts to the court or to any police officer

3. the person shall not leave India without the previous permission of the court.

Can the Anticipatory Bail be canceled?

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.

Why do you need a lawyer for Anticipatory Bail?

If you or someone you know is faced with an arrest or has an apprehension of an arrest, the first step, despite the charges or nature of the offense should be to engage the services of a criminal lawyer . With the numerous kinds & nature of offenses and the rights that flow along with such offenses, a lawyer's expertise will help ensure that the bail applications are filed timely, the rights of the person are protected at every step of the process of arrest and beyond, and that the trial is conducted more smoothly. A criminal lawyer can help ensure that the protocol and law as discussed above regarding bail, arrest, and trial are followed by the police authorities properly and that no additional harm is caused to the person. Only a lawyer can best advise on the course of action to be adopted upon the apprehension of arrest and ensure that the appropriate relief such as bail can be obtained at the earliest in the special circumstances of each case. Given the vast knowledge that the layman may not possess regarding the criminal justice system, a lawyer's guidance becomes extremely important during such sensitive situations.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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