An individual's natural right and fundamental right is the right to liberty. Nonetheless, one must respect the legally recognized rights of others, such as the inviolability of one's own body and property. The legal system is triggered when someone is thought to have committed a crime, and it takes action to apprehend them, prosecute them, and administer punishment if proven guilty. A man loses his freedom when he is arrested. Bail releases him in exchange for his oath to stand trial at a later time and to face consequences if proven guilty.
Anticipatory bail, covered under Section 438 of the Criminal Procedure Code, allows seeking bail before arrest for non-bailable offenses. It's an order for pre-arrest release on bond. The concept originated from the Law Commission of India's recommendation in its 41st report.
Anticipatory bail is an optional provision that the court may provide based on the specifics of the case, the accused's past, the seriousness of the offense, and other pertinent considerations. When granted bail, the court may also set conditions, such as turning in the passport, staying in the nation, or routinely reporting to the police station.
Grounds on which one can seek anticipatory bail
- No past criminal record – any person who is seeking anticipatory bail may seek such bail basis his records. No criminal record is considered to be a positive factor for seeking anticipatory bail.
- Anyone under the age of sixteen and sick or disabled individuals charged with such a crime shall be freed on bond.
- One can seek bail on the ground that a baseless lawsuit will be brought against them, or that there are solid reasons to believe that someone charged with a crime is unlikely to evade justice or abuse their freedom while out on bond.
- One can seek anticipatory bail after making the court believe that such a person will be always available to be interrogated and will cooperate as and when required.
Step By Step Procedure to Anticipatory Bail Application
When FIR is filed
- The first course of action would be to get in touch with a Bail lawyer and, if at all feasible, obtain a copy of the police complaint or First Information Report (FIR) that has been filed against the accused with the relevant police station.
- After that, the lawyer will draft the anticipatory Bail Application and submit it to the relevant Sessions Court or High Court, as applicable, along with his Vakalatnama, which serves as an accuser's representation.
- The concerned court will first determine whether or not the accused makes out a case for bail after hearing the arguments made by the lawyer representing the accused and the arguments made by the public prosecutor representing the State.
- The court may first grant interim bail to the accused on hearing the first representations and decide to eventually consider the anticipatory bail application when final arguments are concluded.
When FIR is not filed
- The concerned police officer will speak with the public prosecutor.
- Since no FIR has been filed, the prosecution would believe that there are no grounds to grant anticipatory bail.
- Your lawyer will ask the judge to revoke the anticipatory bail verbally if the judge grants this request.
- The lawyer will then orally request a seven-day pre-arrest notice if the police decide to arrest you or a member of your family.
- The judge will probably accept this plea.
- In line with that, an order will be passed. This is usually referred to as the "notice bail."
- You may apply with the High Court if the bail request is denied.
Section 438 of CrPC contains express provisions for the grant of Anticipatory bail
The conditions under which bail may be granted for an offense that is not subject to bail are outlined in Section 437. If an accused or suspected person is charged with a non-bailable offense, and if they are detained or arrested without a warrant by a police officer, or if they appear in court other than the High Court or Session Court, they may be released on bail subject to the following circumstances:
- the type and seriousness of the accusation. If the Court grants an interim order based on the nature and seriousness of the accusation, it shall promptly cause a notice, not to exceed seven days, along with a copy of the order, to be served on the Public Prosecutor and the Superintendent of Police to give the Public Prosecutor a fair chance to be heard;
- the applicant's past criminal history, including whether or not he was convicted of a crime and served time in jail;
- the applicant's potential to elude justice; and, in cases where the accusation was made with the intention of embarrassing or injuring the applicant by getting him arrested, either reject the application right away or issue an interim order for the grant of anticipatory bail; or
- If the application for anticipatory bail is made to cause the applicant harm or humiliation through his arrest, the court may reject it immediately or issue an interim order granting the bail. However, if the High Court or the Session Court, as the case may be, has not issued any interim orders under this Sub-Section or has denied the application for anticipatory bail, the officer in charge of a police station may arrest the applicant without a warrant based only on the allegations made in the application.
When the High Court or Session Court issues a directive under the type and seriousness of the accusation, it may incorporate any restrictions it deems appropriate, taking into account the specific facts of the case, such as—
- a requirement that the subject makes himself available for questioning by a police officer upon request;
- a prohibition against the subject, directly or indirectly, offering any inducement, threat, or promise to anyone who knows the case's facts to prevent that person from disclosing those facts to the court or any police officer;
- a requirement that the subject not leave India without the court's prior approval; and
- any other conditions that the court may impose by the law.
Cancellation of anticipatory bail by the court
The courts after allowing bail may cancel the bail upon the occurrence of the following events:
- Violation of bond Conditions: If the person granted the bond fails to comply with the conditions specified by the court, such as reporting to the police, attending court hearings, or staying away from specific individuals or places.
- New Offense: Bail for a prior offense may be revoked if the accused is taken into custody for a new offense while still under bond.
- Public Safety Concerns: The court may waive bail to safeguard society if the accused presents a serious risk to public safety or is a threat to the community.
- Failure to Appear in Court: The court has the authority to revoke bail if the accused consistently misses compulsory court appearances.
- Bail Abuse: When someone abuses the freedom that has been granted to them by posting bail to engage in illegal activity.
- Flight Risk: The court may revoke the accused's bail if it turns out that he intends to leave the country to escape being prosecuted.
- Tampering with evidence or interfering with witnesses.
Conditions imposed by the court while granting anticipatory bail
The court may impose conditions while granting anticipatory bail, here are the conditions
- The person allowed bail should make himself available to be questioned by a police officer at any time.
- The person needs to give the local police station their phone number, native address, and address where they currently reside.
- The person will not, directly or indirectly, provide any enticement, threat, or guarantee to anybody aware of the case's facts to keep him from telling the court or a police officer about such information.
- The person will not depart India's borders without a court's prior approval.
- If the bail was granted under Section 437(3), any such extra condition may be imposed.
- the type and seriousness of the accusation. If the Court grants an interim order based on the nature and seriousness of the accusation, it shall promptly cause a notice, not to exceed seven days, along with a copy of the order, to be served on the Public Prosecutor and the Superintendent of Police to give the Public Prosecutor a fair chance to be heard;
- the applicant's past criminal history, including whether or not he was convicted of a crime and served time in jail;
- the applicant's potential to elude justice; and, in cases where the accusation was made with the intention of embarrassing or injuring the applicant by getting him arrested, either reject the application right away or issue an interim order for the grant of anticipatory bail; or
- If the application for anticipatory bail is made to cause the applicant harm or humiliation through his arrest, the court may reject it immediately or issue an interim order granting the bail. However, if the High Court or the Session Court, as the case may be, has not issued any interim orders under this Sub-Section or has denied the application for anticipatory bail, the officer in charge of a police station may arrest the applicant without a warrant based only on the allegations made in the application.
When the High Court or Session Court issues a directive under the type and seriousness of the accusation, it may incorporate any restrictions it deems appropriate, taking into account the specific facts of the case, such as—
- a requirement that the subject makes himself available for questioning by a police officer upon request;
- a prohibition against the subject, directly or indirectly, offering any inducement, threat, or promise to anyone who knows the case's facts to prevent that person from disclosing those facts to the court or any police officer;
- a requirement that the subject not leave India without the court's prior approval; and
- any other conditions that the court may impose by the law.
Frequently Asked Questions Related to Anticipatory Bail
Q. What to do if my anticipatory bail is rejected?
The applicant may appeal before the High Court as a matter of right if the Sessions Court denies the request for anticipatory bail. If the High Court denies the applicant's request for anticipatory bail, the applicant may petition the Supreme Court under Article 136 of the Indian Constitution as grounds for Special Leave Petition (SLP). However, such a petition is only considered on its merits if the Supreme Court grants permission.
Q. For how long is my anticipatory bail valid?
The Court decided that bail should typically be granted until the conclusion of the trial and that it is not essential to set a time limit. But if there are good grounds, the court may shorten the time frame to a reasonable amount of time following the filing of the FIR and order the applicant to get an order of bail under section 437 or 439. It should be standard practice to not place a time limit on the order under section 438.
Q. What are the costs associated with obtaining anticipatory bail?
Seeking anticipatory bail entails paying legal fees, court costs, and other costs, such as those associated with getting the records and evidence needed for the application, the advocate's travel expenses, and the costs of serving summonses and notices to the parties. The anticipatory bail procedure may entail additional costs in addition to the legal and court fees. These could include costs for the advocate's travel, costs for gathering the documentation and proof needed for the application, and costs for serving summonses and notifications to the parties concerned. Further, a bond may occasionally be required as a security deposit before the accused can be released on bail. The seriousness of the offense and the court's discretion will determine the bond amount.
Q. How much time does it take to get anticipatory bail?
The procedure of getting bail typically takes 15 to 30 days. This is because after the public prosecutor receives your petition, he will file objections, which may take a few days. After that, the arguments will be heard, and orders will be passed. In this way, the entire process typically takes 15 to 30 days. However, police typically take a while to file objections in cases like 498A. The judge continues to set hearing dates until objections are received.
References:
- https://restthecase.com/knowledge-bank/what-is-bail-in-india
- https://indiankanoon.org/doc/1783708/
- https://districts.ecourts.gov.in/sites/default/files/6-Bail%20Anticipatory%20Bails%20-%20Sri%20M%20Sreenu.pdf
- https://main.sci.gov.in/supremecourt/2022/6350/6350_2022_8_22_46663_Judgement_29-Aug-2023.pdf
- https://www.livelaw.in/high-court/uttarakhand-high-court/uttarakhand-high-court-ruling-anticipatory-bail-maintainable-after-chargesheet-filed-section-438-crpc-236174
