How to apply for Anticipatory Bail Application

What is Anticipatory Bail?

Section 438 (Criminal Procedure Code) grants anticipatory bail when there is a fear or apprehension of arrest. Bail is the legal remedy that allows a person to be temporarily free until a final judgement has been rendered in their case. A person may avoid arrest depending on the severity of the accusations. However, they can still apply for anticipatory bail even before the First Information Report has been filed.

 Anticipatory bail can be a great relief for many in criminal cases.
 

Anticipatory Bail Application

Anticipatory bail is applied in anticipation of arrest. It is a direction to release a person on bail, issued before the person is arrested. If the person has a reason to believe that he might get arrested for a crime for which he has been falsely implicated, then he has the right to apply for this type of bail. One may apply for anticipatory bail after learning that a criminal complaint has been filed against him. It is also important to know whether, in cases where the FIR has been filed, the offense is bailable or non-bailable . Since in the former bail is granted as a matter of right, the grant of bail in the latter is based on several contingencies.

Section 438 of the Criminal Procedure Code

Section 438 of the CrPC has been reproduced below verbatim:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offense, he may apply to the High Court or the Court of Session for a direction under this section and that court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:

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

2. a condition that the person shall not, directly or indirectly, make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,

3. a condition that the person shall not leave India without prior permission of the court,

4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and if a Magistrate taking cognizance of such offense decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under subsection (1).

How to Apply for Anticipatory Bail?

Given below are steps to apply for an anticipatory bail :
1. Contact a lawyer to apply for pre-arrest notice/notice bail, and anticipatory bail It is advisable to engage a criminal lawyer once a criminal complaint or FIR has been lodged. Once engaged, a suitable course of action including application for pre-arrest notice, notice bail or anticipatory bail can be decided upon.
2. Get the lawyer to draft an anticipatory bail mentioning your version of the facts The Lawyer would draft an application for anticipatory bail mentioning as to why the bail shall be granted while stating your version of the facts surrounding the matter.
3. Apply at the appropriate district court or high court Once the application for anticipatory bail is drafted the advocate will file the same at an appropriate Sessions Court.
4. Hearing of the Bail Application : Hearing of Bail Application The lawyer must appear and be present to explain the case when the matter is heard. The judge may grant anticipatory bail if he believes the case is suitable. If an anticipatory bail application is denied by the Sessions Court, a High Court application may be filed. If the High Court rejects bail as well, you can also apply to the Supreme Court.

Procedure for Anticipatory Bail Application in India

The procedure followed will alter depending on whether or not an FIR has been filed.

1. When FIR is not Filed

• The prosecutor will speak to the concerned police officer

• As no FIR was filed, the prosecutor would be of the opinion that there is no basis for anticipatory bail

• Your lawyer will verbally be asked to withdraw your anticipatory bail if the judge agrees.

• The lawyer will make an oral request for a seven-day pre-arrest notification in the event that police intend to arrest you/your loved ones

• It is likely that the judge will accept this plea

• A court order will be issued accordingly.  

• You can appeal to the High Court if your bail application is denied.

• You can also appeal to the Supreme Court if the High Court rejects your bail.

2. When FIR is Filed

• In cases when the FIR has been filed , the Investigating Officer will send a notice of arrest

• As soon as this notice is received, one should apply for anticipatory bail following the same procedure as stated above

Which Courts have Jurisdiction for Anticipatory Bail Application?

When an individual has a reason to believe or an apprehension that he/she may be arrested for an accusation of committing an offense of non-bailable nature, he/she may apply to the High Court or the Court of Sessions for a direction to the investigating agency seeking that if he/she is arrested, he/she may be released on bail.

Bailable and Non-Bailable Offences

Depending on the kind of offense that the police have registered, a person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC) .

Sec 436 provides that when any person other than a person accused of a non-bailable offense is arrested or detained without a warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail.

[Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.]

Conditions that may be Imposed by the Court:

In light of facts in a particular case, the High Court or Court of Session can include conditions, such as:

• A condition that the individual must be available to the police for questioning when and as required

• A condition that the person concerned shall not directly or indirectly make any inducement or threat to anyone who is familiar with the facts in the case, so as to discourage him from disclosing these facts to a court or any police officer

• A condition that a person cannot leave India without prior permission from the court.

Cancellation of Bail

An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution in case any of the conditions imposed by the Court are being violated. Learn what is cognizable and non-cognizable offences and the difference between them with the help of this criminal law guide.

Landmark Judgements for Anticipatory Bail in India

1. Badresh BipinBai Seth vs. the State of Gujarat (2016) 1 SCC 152

It was ruled that the provision of anticipatory bail enshrined at Section 438 is conceptualized in Article 21 of Constitution, which relates to personal life & liberty. This provision requires a liberal interpretation to Section 438 in light of the Article 21 of Constitution. The Code states that anticipatory bail is a legal procedure that is used before arrest. It directs that, in the event that the person to whom it is granted is arrested for the charge in which the direction was issued, the person will be released on bail. These two provisions are said to be closely related and that the legislator has protected the fundamental right of "Right to Life" by adopting this provision.

2. M.C Abraham and Anr v. State of Maharashtra and Anr

The Hon'ble Supreme Court in the said case held that the police don't need to arrest a person based on the fact that his/her application for Anticipatory Bail has been rejected.

3. Sushila Agarwal v. State of Delhi 2020 SCC OnLine SC 98

In deciding on the landmark judgement, the Hon'ble Supreme Court posed two questions:-

1. The protection provided to a person by Section 438 of the Cr. The P.C. should be limited for a specific period to allow the person to surrender to the trial court to seek regular bail.

and,

2. If the Anticipatory Bail is to end when the accused appears in court.

The Constitutional Bench answered the first question, stating that the court is not to set a time limit for Anticipatory Bail. The court ruled that the protection provided to an individual under Section 438 of the Cr.PC does not have to be for a specific period. It should apply to the accused indefinitely.

Second, the answer to the second question stated that "the life or duration or an anticipatory order does not normally end at the stage and time when the accused was summoned by court or when charges were framed, but can continue until the end of trial." If there are any peculiar or special features that require the court to limit anticipatory bail's tenure, then it can do so.

Why do you Need a lawyer?

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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