How To Apply For An Anticipatory Bail

Anticipatory bail is applied when there is an apprehension of arrest for accusation of a non-bailable offence. The applicant can approach either to the Court of Sessions or High Court, as the case may be, u/s 438 of CrPc. The Court, after examining the nature of the offence, facts of the case etc, either grants or rejects the application.

Wed Jun 22 2022 | HLL Knowledge Series | Comments (0)

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An Anticipatory Bail is a preventive bail granted in anticipation of an arrest. When a person has a reason to believe or an apprehension that he can be arrested for the accusation of committing an offence, which is non-bailable in nature, he can apply for an anticipatory bail. A non-bailable offence is an offence which is generally serious or grave in nature, where granting a bail, strictly depends on the discretion of the Court and bail cannot be demanded as a matter of right of the accused.

The term anticipatory bail is not defined or mentioned specifically in the Code of Criminal Procedure, 1973, however, Sec 438 of the said act mentions the provision of a pre-arrest bail and hence it is popularly called as an “Anticipatory Bail”. According to sec 438, when any person has a 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.

If an Anticipatory Bail is granted by the court/ the application for an anticipatory bail is allowed by the Court, it means that eventually, if the person gets arrested without warrant, then based on this application, he should be released on bail immediately.

One should draft an anticipatory bail mentioning the facts and reasons as to why there is an apprehension of his arrest.  The application for bail is then made at an appropriate Sessions Court or the High Court. To seek an anticipatory bail, it is mandatory that the accusation should be for  an offence which is non-bailable in nature.

If the Court is satisfied as to the facts and reasons expressed for an apprehension of the arrest, the application granting the anticipatory bail is allowed to the accused. In case an anticipatory bail application  is rejected in the Sessions Court, the application can be made in the High Court. It is mandatory for the applicant to be present before the court at the time of hearing of the application.

When the High Court or the Court of Session, as the case maybe, makes such a direction, it may include some conditions in such directions in the light of the facts of the particular case, 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; a condition that the person shall not leave India without the permission of the Court and any such other condition as may be imposed.

An important advantage and need of granting an Anticipatory bail arise because in our society there might be some influential persons who try to inculpate people with whom they have some rivalry, in fallacious cases in order to harm their reputation or for taking a revenge. Generally, this is induced by political rivalries, etc. and prevalent in false cases u/s 498-A- Husband or relative of husband of a woman subjecting her to cruelty, Sec 370- Rape, Sec 420-Cheating and dishonestly inducing delivery of property, etc.

Hence, while granting or rejecting the Anticipatory bail, the severity of allegations, past records/antecedents of the accused, possibility of tampering with the evidence, etc. are the main aspects taken into consideration. Therefore,  the Courts should  exercise  discretion in  granting or rejecting the anticipatory bail with utter caution, by abiding the principles of natural justice.

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