Anticipatory Bail: Insights Under the Indian Laws
When discussing anticipatory bail, it is pertinent to understand what a bail is, as it serves as the foundation of anticipatory bail. A bail, in simplified terms, is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment is passed. It is the temporary release of a suspect pending the determination of a court trial. Anticipatory bail, as the word anticipatory denotes, refers to a juridical provision that enables a person expecting arrest for a non-bailable offense to apply for bail beforehand. It is therefore a legal remedy in which an individual who is at risk of being arrested can apply for bail in advance of the arrest. The primary purpose of this article is to provide insights on the process of getting anticipatory bail, with citations from relevant case laws and statutory authorities.
What is Anticipatory Bail?
Under the Indian criminal laws, a person is provided with the avenue to get bail in anticipation of an arrest for committing a non-bailable offense. This type of bail is otherwise known as an anticipatory bail. Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. This type of bail is granted when an accused is anticipating an arrest.
Additionally, anticipatory bail is a critical legal tool that can protect individuals from wrongful or unlawful detention and ensure that they have access to due process. A person can apply for anticipatory bail after learning that a criminal complaint has been filed against him. However, the person needs to fulfill an eligibility criteria in order to apply for this type of bail.
Anticipatory bail is granted under Section 438 of the Criminal Procedure Code 1973, hereinafter referred to as CrPC, when a person has the apprehension of arrest in criminal cases. This section was included in the CrPC after the Law Commission of India recommended its incorporation. Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court.
According to the statutory provisions of Section 438 of CrPC, a person having committed an offence anticipates his arrest wherein he can approach the High Court or the Sessions Court for anticipatory bail. It is at the discretion of the Court whether to grant bail or reject the same. It solely depends on the circumstances and the seriousness of the offence. Anticipatory bail can be granted for a non-bailable offence and will be valid only if the person has no direct connection or when the Court believes that the person is innocent.
The locus classicus case of Badresh Bipinbai Seth v. State of Gujarat establishes an anticipatory bail wherein the Supreme Courtheld inter alia that the provision of anticipatory bail enshrined in Section 438 of the CrPC is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Furthermore, In the case of Sushila Agarwal v. State of Delhi 2020 SCC Online SC 98, the Supreme Court held inter alia that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favor of the accused without any restriction on time. The court also held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
Who Can Apply For Anticipatory Bail?
As earlier established, anticipatory bail empowers the accused to seek a reprieve from arrest. It can be only issued by the High Court of a state or Sessions Court. Therefore, any Indian citizen accused of a cognizable or non-cognizable offense and is expecting arrest can approach a Sessions Court or High Court of a state to get anticipatory bail. It is however important to note that people apply for anticipatory bail when they believe that they have been falsely implicated in a case or have been subject to trumped-up charges and might get arrested.
How To Apply For Anticipatory Bail?
The steps to apply for an anticipatory bail are stated in the following;
- Contact a lawyer to apply for pre-arrest notice/notice bail, and anticipatory bail
It is advisable to engage a criminal lawyer once a criminal complaint has been lodged. Once engaged, a suitable course of action including application for pre-arrest notice, notice bail or anticipatory bail can be decided upon.
- Get the lawyer to draft an anticipatory bail mentioning your version of the facts
The Lawyer is empowered by the law to draft an application for anticipatory bail mentioning as to why the bail shall be granted while stating your version of the facts surrounding the matter.
- Apply at the appropriate district court or high court
Once the application for anticipatory bail is drafted, the Lawyer will then file the same at an appropriate Sessions Court or High Court of a state.
What are the criteria to be fulfilled before an anticipatory bail is granted?
- The offence against which the bail is sought should be a non-bailable offence.
- There should be a grave apprehension that the accused will be arrested by the police authorities for such a non-bailable offence
Conclusion
In order to successfully obtain anticipatory bail, it is essential to consult with an experienced criminal lawyer who is familiar with the processes involved.
Moreso, the party seeking anticipatory bail must demonstrate a strong need for such legal relief and provide evidence to support their case. The applicable statutes and case law governing anticipatory bail in the relevant jurisdiction must also be taken into view.
In addition, it may be necessary to provide bail security as a condition of release. All these factors must be carefully considered in order to obtain anticipatory bail.
References
- “Anticipatory Bail Application Format: How to apply for Anticipatory Bail” https://lawrato.com/indian-kanoon/criminal-law/anticipatory-bail-application-how-to-apply-for-anticipatory-bail-lawratocom-13
- Anticipatory bail: basic overview
- https://www.linkedin.com/pulse/anticipatory-bail-b-prachi-pratap?utm_source=share&utm_medium=member_android&utm_campaign=share_via
- “Anticipatory Bail: Meaning, Cost, Section, Conditions | UPSC” https://byjusexamprep.com/current-affairs/anticipatory-bail
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About Author
Rofiat Popoola is a law student at the prestigious University of Ilorin, Nigeria. She is a passionate writer, researcher and volunteer who prides in writing on contemporary issues affecting her country as a whole. She joined LawGlobal Hub in January, 2023.
