Procedure to File for Anticipatory bail Application – LawRato.com

  • Procedure to Apply for Anticipatory Bail Application

    The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive sentence. If his presence at the trial could be reasonably ensured otherwise than his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. 

    In fact ‘anticipatory bail’  is a misnomer as it is not bail presently granted in anticipation of arrest. When  the Court grants ‘anticipatory bail’ what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting ‘anticipatory bail’ becomes operative.


    When should Anticipatory Bail be Applied for

    Anticipatory bail is literally applied for 'in anticipation of arrest'. It is a direction to release a person on bail, issued even before the person is arrested.

    If the accused has a reason to believe that s/he may be arrested on accusation of having committed a non-bailable offence, then s/he has the right to apply for an anticipatory bail in the Sessions Court or High Court.

    One may apply for anticipatory bail after learning about a criminal complaint made against them to the police by their wife, or by any threats made by her family against themselves and their family.

    It is also important to know whether, in cases where the FIR has been filed, the offence is bailable or non-bailable. While in the former bail in granted as a matter of right, the grant of bail in the latter is based on several contingencies.


    How to apply for anticipatory bail

    Contact a lawyer to apply for pre-arrest notice/notice bail, and anticipatory bail.

    Get the lawyer to draft an anticipatory bail mentioning your version of the fact.

    Apply at the appropriate Sessions Court.

    When the matter comes up for hearing, it is advisable that your lawyer is accompanied by a trusted person.


    When the FIR has not been Filed

    The public prosecutor will talk to the police officer concerned.

    Since no FIR has been filed, the PP 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 your plea.

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

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

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


    When the FIR has been 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


    Anticipatory Bail Application for Bailable& Non-Bailable Offences

    A person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC)  depending on the kind of offence that the police has registered.

    Section 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.]


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

    b. 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;

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



    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.


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    These guides are not legal advice, nor a substitute for a lawyer

    These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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