What is Anticipatory Bail?

Anticipatory bail means bail in anticipation of arrest. It can also be called pre-arrest bail in some cases. When a person apprehends or fears that he can be arrested in a particular case, he can avail this remedy. Section 438 of the Criminal Procedure Code contains express provisions relating to Anticipatory bail.

This provision allows a person to seek bail in a case where such person has a reasonable apprehension of arrest on accusation/allegations of the non-bailable offence alleged to have been committed by him.

Who can seek anticipatory bail?

Any person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence can apply for anticipatory bail.

Where to apply for Anticipatory bail?

The person apprehending arrest can move an application seeking anticipatory bail to the High Court or the Court of Session (in whose jurisdiction the alleged offence is committed or FIR is registered), seeking that in the event of such arrest, he be released on bail.

What is the procedure to get Anticipatory bail?

Section 438 of CrPC contains express provisions for grant of Anticipatory bail.

Section 438. Direction for grant of bail to person apprehending arrest.1

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:
   
   1. A condition that the person shall make himself available for interrogation by a police officer as and when required;
   2. 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 to dissuade him from disclosing such facts to the Court or any police officer;
   3. A condition that the person shall not leave India without the previous permission of the Court;
   4. 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, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued 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)

What points to incorporate in the application for Anticipatory Bail?

Best Criminal Lawyers should consider incorporating the following legal points while drafting a petition for anticipatory bail as per the relevant facts of the case:

• Nature and Gravity of accusation
• Custodial interrogation is not required.
• Recovery if any.
• Prima-facie case based on the allegation in FIR or Complaint
• Criminal Antecedents if any.
• Arresting the accused will humiliate or malign his reputation.
• The applicant is not likely to abscond from the country.
• The applicant will not interfere in the investigation.
• The applicant will not tamper with any evidence.
• The applicant is willing to join the investigation
• The applicant undertakes to abide by all or any condition that may be imposed by the Court as envisaged under section 438 Cr. P.C while granting concession of Anticipatory bail

When can the court grant Anticipatory Bail?

The court can consider any of the following factors among others while granting the concession of anticipatory bail to the accused:

• No custodial interrogation of the accused is required.
• No recovery is to be affected by the accused.
• The nature and gravity of the accusation are not very serious.
• No prima-facie case is made out against the alleged accused.
• No other case is pending against the accused.
• Arresting the accused will humiliate or malign his reputation.
• The accused is not likely to abscond from the country.
• The accused will not interfere in the investigation to be conducted by the Police
• The accused will not temper any evidence that can be used against him by the prosecution.
• The accused will join the investigation and fully co-operate with the investigation agency.

What to do if the anticipatory bail application gets rejected?

In the case where the anticipatory bail application is dismissed by the court, the aggrieved person can challenge that order in the Higher Court.
In case of dismissal of the anticipatory bail application by Sessions Court, the order can be challenged in the High Court.
In case of dismissal of the anticipatory bail application by the High Court, the order can be challenged in the Supreme Court.

Some of the conditions that can be imposed by the court while granting anticipatory bail:

1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him to dissuade him from disclosing such facts to the Court or any police officer;
3. that the applicant shall not leave India without the previous permission of the Court; and
4. such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section.

Bare Act Source:

• The Code of Criminal Procedure 1973 - https://www.thelawcodes.com/bare-acts/the-code-of-criminal-procedure-1973/