What is anticipatory bail? How to apply for it

Article 21 of the constitution of India guarantees the protection of life and liberty to all the persons. Right to live with liberty includes right to ask for bail when arrested by any law enforcement agency.
In simple words, bail is the process of procuring the release of an accused charged with certain offences by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court. Chapter XXXIII of Code of Criminal Procedure, 1973 under section 436 to 450 deals with provisions relating to BAIL and BONDS.


Kinds of offences

Offences are classified into two categories
Bailable offence and Non bailable ofence under section 2(a).
In Bailable offence, bail can be claimed as a matter of right.
In non bailable offence bail cannot be claimed as a matter of right. It solely depends on the discretion of the court.

kinds of Bail

  • Regular bail
  • Anticipatory bail
  • Interim bail and
  • Default bail.

n the case of Emperor vs Hutchinson AIR 1931 All. HC (Meerut Conspiracy Case) Honorable Court held that only legitimate purposes be served by keeping a person under trial in detension are to prevent repetition of the offence with which he is charged where there is apparent danger of such repitation and to secure his attendance at the trial. It was also held by Mukherjee,J. the principal to be a adduced from section 496 and 497 is BAIL IS THE RULE AND JAIL IS EXCEPTION.

Anticipatory bail (Section 438)

It is a legal provision that allows an accused person to apply for bail before being the arrested. It is an order of the court that in the event of arrest a person shall be released on bail.
Section 438 says a person apprehending arrest for a non bailable offence may apply to the court of sessions or High court for a direction to be released on bail when arrested even before arrest.

Prerequisite conditions:

  1. It must be a non bailable offence.
  2. Applicant must have reasonable apprehension of getting arrested.
  3. The sessions or high court considering nature and gravity of offence, antecedent of applicant etc may either reject the application or issue an interim order for grant of anticipatory bail.

Factors to be taken into consideration before granting anticipatory bail

  1. Section 438(1)(a) provides factors:
  2. The nature and gravity of the accusations.
  3. The charges levelled against the applicant with intention to harm or humiliate him by having him detained.
  4. The applicants record including whether he has previously been imprisoned or sentenced by a court for any cognizable offence.
  5. The potential of the applicant to defy this.

Conditions that may be imposed

Section 438 clause 2 provides for conditions while granting bail that maybe imposed by High court or Court of sessions in the light of the facts of particular case. These includes:

  1. A person shall make himself available for interrogation by a police officer as and when required.
  2. A person shall not make any direct or indirect inducement, threat or promise to any person accuainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer.
  3. The person shall not leave India without permission of the court.
  4. Any other condition that can be imposed under section 437 (3) as if bail were granted under that section.

Duration of Anticipatory Bail

The Bail shall be effective till the conclusion of the trial unless it is cancelled by the court taking action undersection 437 (5) or 439 (2) of the code.
Cancellation of Anticipatory Bail:
It is implicit that the court which grants anticipatory bail is entitled upon appropriate consideration to cancel or recall that order.
In the case of Padam vs State of Rajasthan, 1991 It was held by the court that an order of anticipatory bail granted by the court of session can be recalled or cancelled by that Court or by high court but an order passed by the high court can not be cancelled by Session Court.
Interim order and notice to public prosecutor:
Section 438(I) (A) provides where the court grants an interim order under section 438 (1), it shall forthwith cause a notice being not less than 7 days notice, together with the copy of such order to be served on the public prosecutor and Superintendent of police, with the view to give the public prosecutor a reasonable opportunity of being hard when the application shall be finally heard by the court.

Distinction between bail and anticipatory bail.

Bail is available and granted after arrest and means release of a person from the custody.
However anticipatory bail is available and granted in anticipation of arrest and is effective at the very movement of arrest.
Cases in which anticipatory bail cannot be granted:
Section 438 clause 4 provides that anticipatory bail cannot be granted in cases of arrest of any person on accusation of having committed an offence under section 376(3), 376(AB), 376(DA), 376 (DB) of IPC,1860.
Offences under SC/ST prevention of atrocities Act (section 18).
Gurbaksh Singh Sibbia vs State of Punjab, 1980 SC In this case Supreme Court held that bail is the process to set a person free who is under arrest or detention by taking security for his appearance. A notice is to be given to the public prosecutor before application for anticipatory bail to be considered by the court is not required under section 438 and legally it is possible to pass and ex party order of anticipatory bail. However a short dated notice should be issued to the prosecutor and question of bail should be re-examined in the light of perspective contentions of the parties.
Mohammad Zaid vs State of U.P., 2020 All. HC.
The court held that a juvenile or a child in conflict with law can be arrested or apprehended if such a need arises, but it cannot be left remedyless till the time of his arrest or apprehension. He can explore the remedy of anticipatory bail under section 438 if need arises.

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