Anticipatory Bail

In the Section of Bail under the Indian Criminal Law, there is a provision for ‘Anticipatory Bail.’ The 41st Law Commission report of India recommended Anticipatory Bail and thus this provision came into procedure code under the Section 438 of the Criminal Procedure Code.

Anticipatory Bail
is the release of a person on Bail, granted to him even before he is arrested. It allows a person to seek Bail if he/she anticipates an arrest by the law on the accusation of having committed a Non-Bailable offence.

When an Anticipatory Bail is filed, the opposing party is notified of the Bail application. The opposition party in return can file an application (with the help of a prosecutor) to contest the original application of Anticipatory Bail.

Eligibility for getting Anticipatory Bail

Under the Section 438 of the Code of Criminal Procedure, A person can seek Anticipatory Bail from The Court of Session or The High Court if the person apprehends that there is a move to get him arrested based on the reasons such as

    On false or trumped charges

    Due to enmity with someone

    Under the fear of  a false case, likely to be built against him

The court may (if the court thinks the person is genuine) or may not (if it thinks the otherwise) accept the application of the bail.  The Session Court, High Court as well as the Supreme Court hold the authority to grant any person Anticipatory Bail.

Conditions of obtaining Anticipatory Bail

The Session Court and the High Court accept the application of Anticipatory Bail on the terms of looking at all the facts in light and studying the case in detail. Bail can be only granted under the following conditions

    The person agrees to make himself available for interrogation in the police custody or the Court, when and where required.

    The person may not directly or indirectly try to alter the facts of the case.

    He may not make any inducement, threat or promise to any person acquainted with the facts of the case.

    The person agrees to not leave the country without the permission of the court.

Qualification for obtaining Anticipatory Bail

The person who applies for Anticipatory Bail must show (with the help of the facts and events) that he has the reason to believe, that he might be arrested for a Non-Bailable offence so that the Court may take provisions to specify the offence or offences that the Bail is demanded for and will grant the permission of Bail (looking at the facts) only for that particular offence or offences.  As Anticipatory Bail is not a blanket order that covers all the other offences filed against the same person.

Cancellation of Bail

An accused that is released on Bail is free only until the time the Bail is not cancelled. The Court of Session as well as The High Court holds the authority to cancel the application or the grant of Bail, of a person and give the order to arrest him and put him in custody based on the application demanded by the complainant or the prosecution.