How to apply for Anticipatory Bail Application

हिंदी में पढ़ें
June 08, 2021
By Advocate Chikirsha Mohanty





What is Anticipatory Bail?

Anticipatory bailis granted under Section 438 of the Criminal Procedure Code when a person has the apprehension of arrest in criminal cases. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment has been passed in his case. Depending on the gravity of the allegations, a person may be able to avoid arrest, however, a person can apply for anticipatory baileven before a First Information Report (FIR) has been filed against him, on anticipation that he has reasonable grounds to believe to be arrested.

In cases of criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused persons.

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Anticipatory Bail Application

Anticipatory bail is applied for in anticipation of arrest. It is a direction to release a person on bail, issuedbefore the person is arrested. If the person has a reason to believe that hemight get arrested for a crime for which he has been falsely implicated, then hehas 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, theoffenceisbailable or non-bailable. Since in the former bail isgranted as a matter of right, the grant of bail in the latter is based on several contingencies.

Consult:Top Criminal Lawyers in India



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 offence, 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 offence 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 sub-section (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 grantedwhile statingyour version of the facts surrounding the matter.

3. Apply at the appropriate district court or high court
Once the application for anticipatory bail is draftedthe advocate will file the same at an appropriate Sessions Court.

4. Hearing of the Bail Application
When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case to be fit for granting anticipatory bail, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made to the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court.

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Procedure for anticipatory bailapplication in India

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

1. When FIR is not Filed

  • The public prosecutor will talk to the police officer concerned

  • Since no FIR has been filed, the prosecutor will be of the view that there are no grounds for granting anticipatory bail

  • The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail

  • The lawyer will then make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest you/your family

  • In all likelihood, the judge will grant this plea

  • An order will be passed accordingly. This is called the ‘notice bail’ commonly.

  • If the bail application is rejected, you could apply to the High Court.

  • If the High Court also rejects the bail, you could apply to the Supreme Court

    Consult:Top Criminal Lawyers in India

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 accusation of committing of an offence 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 offence that the police have registered, a person should apply for bail under the relevant provisions of theCode of Criminal Procedure, 1973 (CrPC).

Sec 436 provides that when any person other than a person accused of a non-bailable offences is arrested or detained without 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.]

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Conditions that may be Imposed by the Court:

The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:

  • a condition that the person shall make himself available for interrogation by the police officer as and when required;

  • 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;

  • a condition that the person shall not leave India without the previous permission of 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.

Learnwhat is cognizable and non-cognizable offencesand the difference between them with the help of this criminal law guide.

Consult:Top Criminal Lawyers in India



Landmark Judgements for Anticipatory Bail in India

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

It was held that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail."

The Apex Court, while observing the above stated that Section 438 and Article 21 are related to each other. Both these provisions were held to go hand in hand and that by enacting the said provision for grant of Anticipatory Bail, the legislature has upheld the Fundamental Right of “Right to Life” of the citizen.

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

The Hon’ble Supreme Court in the said case held that it is not mandatory for the police to arrest a person based on the fact that his/her App;ication for Anticipatory Bail has been rejected.

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

The Hon'ble Supreme court framed two questions while deciding the landmark judgment:-

1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail,

and,

2. Whether life of Anticipatory Bail should end at the time and stage when the accused is summoned to court.

The Constitutional Bench of the Court answered the first question by stating that there can be no time limit set for the Anticipatory Bail by the court granting the same. It was held that "the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time."

The second question was answered by stating that "The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."



Why do you need a lawyer?

If you or someone you know if faced with an arrest, or has an apprehension of an arrest, the first step, despite the charges or nature of the offence should be to engage the services of acriminal lawyer. With the numerous kinds & nature of offences and the rights that flow along with such offences, a lawyer’s expertise will help ensure that the bail applications are filed timely, rights of the person are protected at every step of the process of arrest and beyond, and that the trial is conducted more smoothly.

Acriminal lawyercan help ensure that the protocol and law as discussed above regarding bail, arrest and trial is followed by the police authorities properly and that no additional harm is caused to the person. Only a lawyer can best advice on the course of action to be adopted upon 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, alawyer’s guidancebecomes extremely important during such sensitive situations.



 

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