Anticipatory Bail

Anticipatory Bail in India

The first thought that comes to mind when you are charged with a criminal offence is the fear of arrest. A person facing criminal accusations can land up in jail anytime if the offence accused of is serious in nature (like rape, murder, cheating, etc.). The immediate relief a person can seek in a situation like this is bail, in case a warrant has already been issued, or anticipatory bail, in case you are anticipating an arrest.

The law governing regular bail and anticipatory bail has been dealt with under the Code of Criminal Procedure, 1908 (CrPC). Sections 437 and 438 of the Code talks about regular bail, whereas, section 438 of the Code deals with the concept of anticipatory bail. Read on to know more about regular bail and anticipatory bail.

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What is Bail?

Bail or regular bail refers to cash, bond or property that an arrested person gives to ensure the court that he or she will appear in the court whenever required. In case after the court has granted bail and the person still does not attend the court hearing, the court may keep the bail and issue a warrant for the arrest of the person. In other words, it is a legal relief that a person may be entitled to in order to get temporary freedom until a final judgment has been passed in his or her case.

How to get Regular Bail?

In order to apply for bail either in case of a bailable or a non-bailable offence, the accused will have to submit an application for bail in the court. The court will then send the summons to the other party and will fix a date for the hearing. On the date of hearing, the court will hear arguments from both the sides and would give a decision based on the facts and circumstances of the case.

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What is Anticipatory Bail?

Anticipatory bail is granted when a person has the apprehension of arrest in a criminal case. In case of anticipatory bail, a person may be able to avoid arrest depending upon the gravity of the allegations. A person can apply for anticipatory bail even before a First Information Report (FIR) has been filed against him.

How to get Anticipatory Bail?

When a person has an apprehension of an arrest for a criminal offence, he or she may file an application for anticipatory bail with the help of a good anticipatory bail lawyer. The lawyer will file the anticipatory bail application in the requisite court having authority to adjudge the particular criminal matter along with a vakalatnama. The court will then notify a public prosecutor about the anticipatory bail application and would ask him to file objections if any. Thereafter, the court will appoint a date of hearing and after hearing the final arguments of both the parties would give a judgment based on the facts and circumstances of the case.

How long does it take to get Bail?

It may take around a week to 15 days for a court to dispose of (conclude) a bail application. However, whether the applicant would get bail or not would totally depend upon the discretion of the court. The court, while deciding a bail application, would take into account various factors, such as the offence the accused is charged for, the severity of the offence, facts, and circumstances of the case, etc.

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Validity of Anticipatory Bail

The duration of validity of an anticipatory bail depends upon the discretion of the court. The court that grants anticipatory bail usually specifies the validity of the bail in the order. However, in case the validity has not been specified in the order, the validity would be until the final judgment is given in the case.

Generally, the court grants anticipatory bail for a period of 30 days and after the period of 30 days, one needs to apply for regular bail. Although, if the accused is arrested, he must produce his anticipatory bail and also file for regular bail during the stipulated time of the anticipatory bail. Once the stipulated time expires, the accused must file for an extension of the anticipatory bail or a fresh application may be made.

Cost of Bail

Cost of bail in a criminal case depends upon the gravity of the case involved. It generally includes the cost imposed by the court for furnishing bail bonds and the fees of the lawyer engaged. Usually, in criminal cases of lower gravity, a standard amount is fixed as per the conventional practice of the court which is required to be submitted in the court for the bail to be granted. However, the court may decide this amount at its own discretion depending upon the facts of the case.

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When can bail be denied?

Bail is not denied if the offence charged for is petty in nature or if the accused is not a habitual offender. However, bail can be denied if the court is of the view that if the accused is granted bail, he or she may try to tamper with the evidence. It can also be denied if the past record of the accused suggests that he is likely to commit another offence while on bail. Moreover, the court may deny bail to an accused if the accused has been previously convicted of an offence punishable with at least 7 years imprisonment, life imprisonment or the death penalty, or if the accused has been previously convicted on two or more occasions in cognizable offences.

When can a bail get cancelled?

Bail may be cancelled on the following grounds as per various judgments given by the Indian courts:

  1. When the accused on bail is found tampering with the evidence either during the investigation or during the trial.

  2. When the accused on bail commits similar offence or any heinous offence during the period of bail.

  3. When the accused on bail has absconded and trial of the case gets delayed on the account.

  4. When it is alleged that the person on bail is terrorizing the witness and committing acts of violence against the police.

  5. When the accused on bail creates serious law and order problems in the society and he had become a hazard on the peaceful living of the people.

  6. When it is found that the subsequent events make out a non-bailable offence or a graver offence.

  7. When it is found that there was a wrong exercise of judicial discretion to grant the accused bail.

  8. When the circumstances were proved that the accused has misused the liberty granted to him, it is sufficient ground to cancel bail.

  9. If the life of the accused person on bail itself be in danger.

The anticipatory bail can also be cancelled before the regular bail is actually granted.

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How can a lawyer help you in getting Bail?

Being charged with a crime, whether major or minor, is a serious matter. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal defense attorney who can protect your rights and secure the best possible outcome for your case.

If you're facing criminal prosecution, a criminal defense attorney can help you understand:

  • The nature of the charges filed;

  • Any available defenses;

  • What plea bargains are likely to be offered; and

  • What is expected after trial or conviction.

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