Difference between Regular Bail and Anticipatory Bail

This lawguide provides a complete explanation of the difference between bail and anticipatory bail. Read through to know more and to connect with any of the top rated lawyers here for an advice on the topic.

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 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 the person is anticipating an arrest.

The law governing regular bail and anticipatory bail is dealt with under the Code of Criminal Procedure, 1908 (CrPC). Sections 437 and 439 of the Code discuss regular bail, whereas section 438 deals with anticipatory bail. 

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Before we get into the difference between bail and anticipatory bail, let us discuss the notions separately.
 

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 court whenever required. In case 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 final judgment has been passed in his or her case.
 

Regular Bail for Bailable Offences

Section 436 of the CrPC addresses the bail process for bailable offences. Here, an accused person has an automatic entitlement to bail. The Court places a statutory duty on the Police Officer to grant bail upon request. Additionally, this section sets a limit on how long the police can detain an undertrial prisoner. It specifies that if an accused person has been detained for a duration of up to 50% of the maximum imprisonment period for the offence during the investigation, the Court must release them upon their bond, with or without sureties.
 

Grounds on which Bail is granted

To seek bail, the accused must fulfill the following requirements:

• Presumed Innocence: The accused is considered innocent until proven guilty, implying they may not have committed the crime.

• Investigation Needed: An inquiry is essential to establish the accused's connection to the alleged offence.

• Lesser Serious Crime: To avoid severe punishment, the crime should not have a potential sentence of ten years or more, imprisonment, or the death penalty.
   

Regular Bail for Non-Bailable Offences

Section 437 of the law deals with bail applications when someone is accused of a crime. The court, which includes the Magistrate, can decide to grant, or deny bail in these situations. Even if the offence is labeled as “non-bailable,” bail can still be an option, but there are specific conditions to meet, such as:

• If the person accused is 16 years old or younger;

• If the individual accused is a female;

• If the accused is suffering from illness or physical infirmity

• In cases involving habitual offenders, the granting of bail is contingent upon the presence of exceptional circumstances.

In a bail hearing, only the police officer-in-charge possesses the authority to release the accused as per Section 437 (1). The Magistrate presiding over the hearing may decline the bail application if:

• The individual is guilty of any offence punishable with the death penalty, life imprisonment, or imprisonment for a term of seven years or more;

• Such an individual who has previously been convicted of any offence punishable with the death penalty, life imprisonment, or imprisonment for a term of seven years or more, or has been previously convicted on two or more occasions;

• Abatement, or conspiracy to commit, any grave offence

When someone is granted bail, certain restrictions are imposed on them. These restrictions may include:

• The accused is required to appear in accordance with the terms specified in the bond;

• The accused must avoid committing any similar offence to the one they are currently facing allegations for;

• The accused is prohibited from preventing or discouraging anyone who has knowledge of the case from testifying in court or from tampering with evidence.
   

What is Anticipatory Bail?

Anticipatory bail is granted when a person has the apprehension of arrest in a criminal case. In the 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.

Consult:  Top Criminal Lawyers in India
 

Section 438 states that:

“Direction for grant of bail to person apprehending arrest.

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-

   •  a condition that the person shall make himself available for interrogation by a 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;

   •  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, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue 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).”

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Case Laws:

In the case of Kanwar Pal Singh vs State Of Rajasthan, decided on 22 April, 2022, an anticipatory bail application was filed under Section 438 Cr.P.C. concerning FIR No. 161/2020 at Police Station Karni Vihar, Jaipur. The petitioner, Kanwar Pal Singh, was accused of engaging in a consensual relationship with the complainant, a married woman aged 34 years. The High Court granted anticipatory bail in favour of the petitioner.

In the matter of Satender Kumar Antil vs Central Bureau Of Investigation, decided on 11 July, 2022, an appeal was made against the High Court's decision declining to quash criminal proceedings against the appellant accused of kidnapping a girl. The Supreme Court of India acknowledged deficiencies in the bail system concerning undertrial issues and bail grants.


Refer LawRato’s law guide on Steps to get an anticipatory bail and get a step-by-step guide on how to get  anticipatory bail.
 

Difference between Regular Bail and Anticipatory Bail

Anticipatory bail is bail that is granted to a person, even before an arrest, in anticipation that he might be getting arrested in some days for a certain criminal offence.  This bail is essential nowadays when influential persons may involve their opponents, in false and frivolous criminal issues to either damage their image or to get them arrested for some time, to enable them to get what they want. 

There is no need for a First Information Report (FIR) to be filed against a person to make an application for anticipatory bail. When a person anticipates the reasonable grounds that exist for his arrest, he will be able to apply for anticipatory bail even before lodging an FIR.
A person has the right to apply for anticipatory bail even after lodging an FIR but only before the arrest is made. Once a person is arrested, it is compulsory to move an application for regular bail or interim bail as the case may be.

On the other hand, regular bail is bail that is granted by the Court to a person after he has been arrested. When any person commits a cognizable (offences for which police can arrest without a warrant) and non-bailable offence the police will take him into custody. After the termination of the period of police custody if any, the accused must be sent to Jail.  Under sections 437 and 439 of Cr.P.C., such an accused has a right to be released from custody.
 

5 Main Differences Between Bail and Anticipatory Bail

1. Bail provisions are covered in Sections 436 and 437 of the Criminal Procedure Code (Cr. P.C.), while Section 438 pertains to anticipatory bail.

2. In the past, the Act of 1898 did not include provision for anticipatory bail. It is a relatively new concept introduced in the 1973 Code of Criminal Procedure.

3. Bail can be granted to accused individuals by Judicial Magistrates or Courts. However, anticipatory bail can only be granted by the High Court or Sessions Court.

4. Bail and anticipatory bail are both legal processes related to arrest. where Bail is granted after a person has been arrested, Anticipatory bail, on the other hand, is a legal process that occurs before a person is arrested. It's sought in anticipation of the possibility of arrest.

5. Bail is usually granted as a matter of right for bailable offences. It is worth noting that under Section 437 of the Criminal Procedure Code, there is a possibility of considering bail even for non-bailable offences. However, while granting anticipatory bail, the court must do so cautiously and sparingly, as it is an exceptional authority.
    

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 the hearing, the court will hear arguments from both sides and would give a decision based on the facts and circumstances of the case.

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 criminal lawyer. The lawyer will file the anticipatory bail application in the requisite court having the 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.
 

Anticipatory Bail Cost

On an average the cost for getting an Anticipatory bail range from ?25,000 to ?30,000, with the specific amount determined based on the gravity of the case, that is, more severe the case is, the higher the bail amount will be. The accused person needs to apply to either the Sessions Court or the High Court and only such Court can take the decision to grant or deny bail is at its discretion.
The price of getting anticipatory bail can also be influenced by your lawyer's expertise. A skilled lawyer may secure a more affordable bail compared to an inexperienced one.
 

Regular Bail Cost

Bail costs depend on the seriousness of the case and the lawyer engaged. The court sets bail based on the maximum penalty for the alleged crime. If the penalty is higher, the bail amount is too. Bail amounts depend on the type of crime. For example, lesser serious offences may have a bail amount of Rs. 5,000.00 while graver crimes could be Rs. 90,000 or higher.
 

When can bail be denied?

Bail is not denied if the offence charged 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 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.

Consult:  Top Criminal Lawyers in India
 

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 person on bail is found tampering with the evidence either during the investigation or during the trial.

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

3. When the person on bail has absconded and trial of the case gets delayed on 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 person on bail creates serious law and order problems in society and he had become a hazard to 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 proved that the accused has misused the liberty granted to him, it is sufficient ground to cancel the bail.

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

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

Factors taken into account while granting bail in non-bailable offences

In non-bailable offence cases, the court can choose to grant bail or not, unlike bailable offences where bail is usually granted upon providing sureties and a bond. While deciding whether to grant bail, the court and police officers need to consider the following factors:

1. The seriousness of the offence;

2. The nature of the offence with which such individual is alleged;

3. The nature and seriousness of the circumstances surrounding the event; 

4. The harshness of penalty in terms like the duration of the imprisonment, and the likelihood of the death penalty.

5. The reliability of the evidence provided;

6. Whether the petitioner was provided with the opportunity to prepare his defence;

7. The risk of the accused escaping or running away;

8. Extended trials that exceed necessary durations;

9. The age, health gender of the accused person can influence their release. 

10. The accused’s influence on witnesses and potential for witness manipulation, especially after release, will be assessed based on their social status and position;

11. The public’s interest and the chances of someone offending again after spreading information.
     

Authorities empowered under Section 437 CrPC to grant bail

Section 437 of the act grants the court and the arresting police officer or the officer-in-charge detained without a warrant, along with individuals accused of or under suspicion for a non-bailable offence, the discretion to decide on the granting of bail. This provision bestows the power to assess bail eligibility on these authorities. This section discusses who has the power to grant bail when the crime is non-bailable. It clarifies the limits on a police officer’s ability to grant bail and explains the rights of someone seeking bail when facing trial before a magistrate.

Section 437 of the CrPC empowers trial courts and magistrates to decide whether accused individuals should be granted bail, with no bond option available. only the top official at a police station has the authority to release someone accused of a serious crime on bail. This authority is granted by Section 437(1) of the law. Deciding to grant bail is a critical choice due to the associated risks and consequences. Bail is not mandatory but discretionary, so it should be used carefully. A police station officer must ensure that their actions do not harm the prosecution’s ability to prove the accused’s guilt before taking any action.

The officer-in-charge must hold onto the bail bonds until the accused person either shows up in court or the court decides. They also need to document why the accused was released if there are special circumstances. The law divides non-bailable offences for bail purposes into two categories:

1. Individuals who are punishable with either death penalty or life imprisonment; and

2. Individuals who are not.

When a police officer has sufficient reason to believe that any individual has committed a serious offence which is punishable either with death penalty or life imprisonment, then such an individual cannot be granted bail. Police officers cannot consider aspects such as age, gender, health condition, or disabilities of the accused person, while deciding whether to grant bail. Only the court can take cognizance such factors. The officer-in-charge of the police station can grant bail if there is no strong reason to believe the accused has committed a grave offence, or in case of non-bailable offence it shall be punishable by the death penalty or life imprisonment.

Consult:  Top Criminal Lawyers in India
 

Power of High Court or Sessions Court under Section 439 CrPC

Section 439 of the CrPC allows the High Court or Sessions Court to grant bail. Section 437 of the CrPC prevents bail for serious crimes like those punishable by death or life imprisonment unless there's clear evidence of the accused's guilt. However, Section 439 allows Sessions Court or High Court to grant bail in these cases. 

When a person is accused of a crime and held in custody, the High Court and Sessions Court have certain powers outlined in Section 439 of the CrPC, 1973, to grant bail. Even if bail is denied by the Magistrate, the High Court or Court of Session can still grant bail when necessary. Section 439(1) of the CrPC grants the High Court or Court of Sessions the authority to issue the following orders:

1. That a detained person be released on bail after being charged with an offence;

2. In cases where the offence falls under Section 437(3), a magistrate can alter or lift any restrictions on bail granting.

Before granting bail to an individual accused of a serious crime falling under the jurisdiction of the High Court or Court of Sessions or those potentially carrying a life sentence, the court must notify the public prosecutor regarding the bail application. This requirement holds unless the High Court or Court of Sessions deems it unfeasible, in which case they must furnish a written justification for their decision.

However, in some circumstances, the High Court or Court of Sessions can order the arrest and custody of a person previously granted bail under Chapter XXXIII of the CrPC, pursuant to Section 439(2) of the same code. While the High Court retains the authority to grant bail across a range of cases, it must exercise caution and thoroughly consider specific conditions, particularly when addressing non-bailable offences.

If you want to know more about anticipatory bail in India and how LawRato may help you, read on Anticipatory bail in India | LawRato or visit the LawRato Guide for Anticipatory Bail Format to learn about the aspects of formatting anticipatory bail.
 

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 lawyer who can protect your rights and secure the best possible outcome for your case. You can also  ask a lawyer online   a free legal question using LawRato's Ask a Free Question service.

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

• The nature of the charges filed;

• Any available defences;

• What plea bargains are likely to be offered; and

• What is expected after trial or conviction?

Advocate Chikirsha Mohanty

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

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