Updated: Feb 7
In Simple terms, Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
So, What is bail?
- Bail is a temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.
Law Commission of India in its 41st report recommended incorporating a provision for Anticipatory Bail. Under Section 438 of Criminal Procedure Code,1973, Anticipatory Bail is defined as a provision which allows a person to seek bail in anticipation of an arrest on accusation of non-bail able offence having committed by him.
When a person can apply for anticipatory bail?
When any person perceives that there is a chance to get him arrested on a false charges, or due to a state or feeling of active opposition or hostility with someone, or he fears that a false case is likely to be built up against him, then he/she has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may direct that in the event of such arrest, he shall be released on bail.
Section 438 of the Criminal Procedure Code
438. Direction for grant of bail to person apprehending arrest:
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.
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.
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).
Procedure to Apply for Anticipatory Bail
A person may apply for anticipatory bail after learning about a criminal complaint made against him/her to the police. In cases where the FIR has been filed, the offence is bail able or non-bail able. The investigating officer will send a notice of arrest. As soon as the notice of arrest is received the person should file an application of anticipatory bail with the help of criminal lawyers.
When FIR is Not Filed, then the Public Prosecutor will talk to the concerned police officer. Since no FIR has been filed it will be presumed by the public prosecutor and the court that are no grounds for granting of anticipatory bail. The judge will agree to this and the lawyer will be verbally asked to withdraw the anticipatory bail. The lawyer can make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest. In that case, judge will grant plea. An order will be passed accordingly. Commonly, this is called the ‘notice bail' .
If the bail application is rejected in the Sessions Court, then the person could apply to the High Court. If the High Court also rejects the bail, then could apply to the Supreme Court.
Section 439 of Criminal Procedure Code,1973 deals with cancellation of anticipatory bail. Even if there is no specific provision regarding the cancellation of anticipatory bail still the court has the power to cancel the bail owing to the inherent powers of the high court and it can be invoked under special or exceptional cases.
Conditions For Anticipatory Bail
The Court can impose one or more of the following conditions based on the facts of the particular case:
A person should be available for interrogation by the police officer, as and when required;
Person shall not, directly or indirectly, make any bribe, threat or promise to any person acquainted with the facts of the case so as to persuade him/her not to take a particular course of action from disclosing such facts to the court or to any police officer;
Person shall not leave India without the previous permission of the court.
In a recent press release, State of Uttar Pradesh announced the re-insertion of the provision of “Anticipatory Bail” in the State which was removed at the time of “emergency”.
As per the Press Note, the provision of Anticipatory Bail was omitted by the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 1976.
Several writ petitions were filed to re-introduce the same. A Committee was constituted under Principal Secretary, Home Department, Government of Uttar Pradesh and the Committee had forwarded its suggestion to re-introduce Section 438 CrPC.
The Amendment was approved by the President on 1st June,2019 and has been brought into force with effect from 6th June,2019.