What Is Anticipatory Bail?

Anticipatory bail serves as a legal shield for people who worry about getting arrested for a non-bailable crime. It lets them ask for protection ahead of time, making sure they don't end up in Jail. This rule helps protect personal freedom and stops needless trouble. When someone gets anticipatory bail, they can stay out of custody right away while still working with the legal system.

This article explores the concept of anticipatory bail in India, outlining its legal framework, application process, and key considerations.

What Is Anticipatory Bail?

Essentially, anticipatory bail functions as an "insurance policy" against arrest. It is a pre-arrest bail. If you think you may be arrested for a non-bailable offense, you can ask the court to provide you with bail in anticipation of the arrest; if you are arrested, you will be released on bail if you comply with the court’s conditions.

Legal Definition

Section 438 of the Code of Criminal Procedure (CrPC) addresses anticipatory bail. CrPC has been replaced by Bharatiya Nagarik Suraksha Sanhita (BNSS), where Section 482 talks about the same provision. Currently, BNSS is the governing document.

This Section provides for any person who, "has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence," to make a request to the High Court or the Court of Session for a direction that the person will be released on bail in the event of such an arrest.

The court may grant anticipatory bail, subject to certain conditions, after considering various factors, including the nature and gravity of the accusation, the applicant's antecedents, and whether or not there is a chance that the applicant may flee. The conditions may include:

• Applicant making themselves available for police interrogation;
• Applicant not influencing any witness; and
• Applicant not leaving the country without the court's permission.

It should be noted that anticipatory bail is granted at the court's discretion and is not a right. The primary purpose of anticipatory bail protection against false accusations, any unnecessary harassment, and possible imprisonment of individuals.

Difference Between Anticipatory Bail And Regular Bail

When Can You Apply For Anticipatory Bail?

Anticipatory bail is applicable in situations where an individual has a reasonable apprehension of being arrested for a non-bailable offense.

• Apprehension Of Arrest For A Non-Bailable Offense: The primary requirement is that there must be some "reason to believe" that a person can be arrested for a non-bailable offence. It means that the offense concerned is one in respect of which bail is not a matter of right, and it is within the power of the police to arrest without a warrant.
• Genuine Fear of False Implication: This is where an accusation of involvement in a crime rises out of distrust, petty jealousy, rivalry, or other malicious motives.
• Before an FIR is Registered (in some cases): Though it is common to apply for bail after the filing of an FIR (First Information Report), there are certain occasions in which anticipatory bail is sought before the registration of any formal FIR in case of credible information being received for the imminent arrest.

How The Anticipatory Bail Process Works?

The working process of anticipatory bail is as follows:

Filing The Anticipatory Bail Application

It starts with the applicant choosing anticipatory bail after believing he would be arrested for an offense not eligible for bailable release.

• Where To File: The application is filed in the Court of Session or High Court, depending on the circumstances or jurisdiction it would fall under.
• What’s Included: Essential information about the applicant and what the applicant is accused of is necessary to mention in the application. It gives details of the arrest and of the request for bail, often stating the reasons as potential false implication or malice. Attachment of supporting documents such as the FIR (or a reference) & other relevant documents and evidence strengthens the case of the applicant. This application is usually drafted by a lawyer.

Court Hearing And Presentation Of Arguments

After submitting the application, the court sets a date for a hearing. During this session, lawyers present their legal arguments.

• Notice to the Prosecution: A notice is usually issued by the court to the public prosecutor, allowing him to submit his case.
• Applicant’s Arguments: The applicant's lawyer argues for the granting of bail. This would mostly include mentioning all the reasons for arrest apprehension, pointing to any clean records of the applicant, and arguing that the applicant will collaborate with the investigation.
• Prosecution’s Response: The prosecution provides countervailing arguments: the severity of the crime committed by the applicant, any criminal history of the applicant, and the applicant's potential to flee or destroy evidence.

Court’s Decision

The court makes a decision after hearing both sides.

• Judicial Discretion: The decision to extend or deny anticipatory bail rests solely within the discretion of the court. The court shall consider aspects such as the nature and seriousness of the crime, the criminal antecedents of the applicant, and the chance of fleeing justice by the applicant before passing an order.
• Possible Outcomes: The court may grant anticipatory bail under some conditions. The court may also reject the application if it finds that there are not sufficient grounds for bail. The court can grant bail for a short period while the police conduct their investigations.

Compliance With Bail Conditions

In such a case, the applicant will abide by the conditions set by the court within which anticipatory bail is granted. Conditions may include:

• Availability to the police for interrogation when required.
• Not leaving the country without permission from the court.
• Not tampering with or influencing witnesses during the investigation.
• Furnishing sureties.

Post-Bail Proceedings

Even post-granting of anticipatory bail, the legal process continues.

• The police investigation proceeds, during which the applicant may be required to assist in the investigation.
• In case of the filing of the charge sheet, the matter goes to trial.
• The trial is not conducted before the court that granted anticipatory bail.
• The order will normally stand throughout the trial unless cancelled by another order.

Key Factors Courts Consider For Granting Anticipatory Bail

The courts maintain a fine balance between individual liberty and the interests of justice, while granting or refusing anticipatory bail, having taken into account a number of factors.

Nature And Gravity Of The Accusation

• The nature of the offence is relevant. Murder, rape and serious economic offences probably induce the court to be hesitant about granting anticipatory bail.
• On the other hand, for minor offences, it may consider granting bail if the necessary circumstances are met.
• This line of consideration is necessary to ensure that the administration of justice is not hindered, so that confidence in the legal system is maintained by the populace.

Antecedents Of The Applicant

• The applicant's criminal records play a vital part here. Given a prior conviction for a crime of a similar nature, the odds of an anticipatory bail being granted by the court are slim.
• This has to be done in order to prevent offenders from putting public safety or the legal process in jeopardy.

Possibility Of The Applicant Fleeing From Justice

• The court will examine the potentiality of the applicant absconding or escaping from the trial.
• The ties to the community, the financial status of the applicant, and their prior record of evading trial are some of the factors considered.
• It is of paramount importance to guarantee the applicant's presence during the trial for the purposes of justice.

In the Gurbaksh Singh Sibbia vs. State of Punjab case, the Supreme Court stressed that Section 438 CrPC should be interpreted in light of Article 21 of the Constitution, as it guarantees the right to life and personal liberty. The court also clarified that judicial discretion should be exercised while granting anticipatory bail. This case has assisted in laying down principles, which are still being used these days in courts.

Grounds For Rejection Of Anticipatory Bail

When an application for anticipatory bail is placed before the court, the learned judges assess various factors. The court can turn it down if there are certain red flags found.

Nature And Gravity Of The Offense

• Anticipatory bail is less likely to be granted by the Court in cases of exceptionally serious alleged offenses involving heinous crimes such as murder, rape, or offenses affecting the integrity of the nation.
• The greater public interest is very much considered over the liberty of individuals involved in cases coming under very serious economic offences or crimes with far-reaching adverse effects on society.
• Anticipatory bail would be granted reluctantly by the court where the alleged crime is very serious.

Likelihood Of Tampering With Evidence Or Influencing Witnesses

If the court feels that granting bail would substantially increase the chances of the applicant tampering with the evidence or intimidating witnesses, then the application will probably stand rejected.

In the case of Nimmagadda Prasad v. CBI (2013), the Supreme Court intervened in the matter of bail.. It observed that bail for economic offenses poses an exigent need to differ from almost all other cases, because in these types of offenses, public funds and the economy are very seriously affected. Further, it recognized the threats of tampering with evidence and the seriousness of the alleged offenses as factors against the grant of bail. This judgment provides sharp relief to the growing insistence of the judiciary in requiring justification for the granting of bail where very serious economic crimes are concerned.

Threat To Public Order Or National Security

Anticipatory bail is rarely granted by courts in cases where the alleged crime threatens public order or poses a danger to national security. Courts will always safeguard the interests of the general public.

Prior Criminal Record

Those who have been implicated or faced charges more than once for similar offenses are at higher risk for rejection of their anticipatory bail applications.

In the case of Kalyan Chandra Sarkar vs Rajesh Ranjan, the matter in issue primarily revolved around bail, concerning Rajesh Ranjan (Pappu Yadav), who had been charged with serious crimes. The Supreme Court intervenes to point out an order of the High Court which allowed him bail. The essential points can be summarized as follows:

• The Supreme Court emphasized that when courts even consider the application for bail for grave offenses, other factors have to be taken into account preponderantly.
• It is the charge's gravity that the accused may influence witnesses, that's paramount.
• It was further held that records of previous criminal charges must be taken into consideration as a factor relating to bail.

Conclusion

Anticipatory bail is a very important means of protection for people about the unjust arrest of individuals accused of non-bailable offenses. A proper understanding of the relevant procedure, the factors considered by the courts in deciding the case, and the possible grounds of rejection will help the person more confidently maneuver through this rather difficult area of the law. Anticipatory bail is determined by the sole discretion of the court, depending on the facts of the individual case, certainly, but it is the most important tool to protect personal liberty and fairness to the other party.

FAQs

A few FAQs on anticipatory bail are:

Q1. What is the difference between bail and anticipatory bail?

Bail is granted after arrest, while anticipatory bail is granted before arrest.

Q2. Can anticipatory bail be granted in all cases?

No, it is granted at the discretion of the court, based on the specific facts of the case.

Q3. How long does the anticipatory bail process take?

The duration varies depending on the court's workload and the complexity of the case.

Q4. Can anticipatory bail be cancelled?

Yes, it can be cancelled if the applicant violates the bail conditions or if new evidence emerges.

Q5. What are the chances of getting anticipatory bail?

The chances depend on the facts of the case, the court's discretion, and the arguments presented.