What is Anticipatory Bail? Relevant Provision is Section 438 of Cr.P.C.

) Anticipatory bail does not mean that bail be granted before arrest but refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. The anticipatory labelling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted only after arrest (and becomes operative subsequently) but the latter is granted before arrest and hence is operative from the moment of arrest. Anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable which the police are empowered to arrest the person accused of any crime or on suspicion of the commission of a serious offence which required the custody of the accused to conduct investigation. Case laws which have elaborated the provisions of the anticipatory bail: The law as regards anticipatory bail has been simplified in the famous case law of Gurbaksh Singh Sibba vs. The State of Punjab AIR 1960 SC 1632 and further the same has been upheld now in 2010 in the case of Siddharam Mhetre vs. State of Maharashtra 2011(1) BomC.R. (Cri) 293. These two case laws are a authority on the aw of anticipatory bail. Also the case of Jagganath vs. State of Maharashtra 1981 Cri.L.J. 1808 is a landmark decision on the aspect. Further there are also authorities which point out as to when anticipatory bail can be granted and what are the various aspects which have to be taken into consideration at the time of deciding anticipatory bail applications. The provisions concerning anticipatory bail are to be found in section 438 of the Criminal Procedure Code (CrPC), 1973. What are the pre-requisites to be taken into consideration before filing of Anticipatory Bail? i. ii. iii. Apprehension should be shown for obtaining a anticipatory bail and The apprehension should be that the offence that could be registered against the applicant is of a non bailable offence (the offences which are bailable and non bailable are described in the First Schedule of the Criminal Procedure Code) and Apprehension that the police might register a non bailable offence

Whether is a necessity of registration of First Information Report? There is no necessity of an FIR being registered against the person applying for anticipatory bail. It can be given when a person apprehends arrest for a non-bailable offence (refer to the First Schedule for the list of offences described as bailable and non bailable). Whether the Court grants Interim Anticipatory Bail? Yes, if the Public Prosecutor is going to require time to file his say and wants to consult with the police machinery on the point of anticipatory bail and in such circumstances the applicant feels that he might be arrested to frustrate his anticipatory bail, then in such cases the Court may grant Interim Anticipatory and the same has been decided in the famous cases of Menino Lopes vs. State of Goa and State of Maharashtra vs. KSS Rajput. When would the Court Grant such an anticipatory bail? As per the facts of each and every case the circumstances would differ but the general considerations would be i) ii) iii) iv) v) vi) vii) viii) ix) x) xi) xii) the Court should be satisfied as to how the applicant can be falsely implicated in that particular crimeeven if the applicant has a role to play it should be put through to the Court that the custodial interrogation is not requiredin case of documentary evidence how the documents are in the possession of the prosecution and how custody of the applicant would not serve any ends of the police how there is no need of recovery of any document/weapon/incriminating article from the possession of the applicant how it would affect his/her liberty and would cause embarrassment in the society how the applicant has roots in the society that the applicant is a law abiding citizen that there is no past criminal record how he/she has contributed towards the wellbeing of the society by various acts sole bread earner of the family/dependents any medical history and last but the most important how the applicant is ready to abide by all the conditions put by the Court and how he/she would be ready to co-operate with the investigation.

Can the Anticipatory Bail once granted be cancelled by the Court?

Yes, if the Court which has the power to grant anticipatory bail also has the power to cancel the same if the prosecution/police authorities are able to show as to how the person released on anticipatory bail is not abiding by the conditions put down by the Court and also if the person given the benefit of anticipatory bail is not co-operating with the police authorities for investigation. Whether the presence of the applicant is necessary in the Court? If the Court has granted interim anticipatory bail to the applicant then in such case, the presence of the applicant shall be mandatory but in case the interim is not granted, the presence of the applicant at the time of final hearing of the applicant is mandatory. The Court may reject the application of anticipatory bail if the applicant is not present for the final hearing. When can an Anticipatory bail be not granted? There are certain circumstances where applications for anticipatory bail are normally refused. The offences which would require a custodial interrogation of the applicant, the case where there can be a chance of recovery of weapon from the accused, the cases where there is a chance of discovery of an incriminating article thereby directly showing the nexus between the accused and the offence in such case the anticipatory may be rejected. The The offences like SC & ST have made the provisions which state that the provisions of anticipatory bail would not be applicable but there is always an exception to the same and where the applicant is in a position to show that the offence alleged is prima facie not under that stringent provision, the anticipatory can be granted. The offences like murder, rapes, dacoity, economic offences are the instances where the courts are very careful while granting anticipatory bails. The trend now in cases of economic offences is that they are worst than the murders and rapes and hence forget anticipatory bails but not even regular bails are granted because of the apprehension of tampering with the evidence, witnesses etc. In offence like MCOC Act and Defence of India Rules, the provision of anticipatory bail would be like making a fool out of the applicant as well as the lawyer who suggests such a remedy to the client.

For offences/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971. The provisions of s. 438 are normally refused to those accused of particularly heinous offences like murder, rapes

Where to make an application of Anticipatory Bail?

The application for anticipatory bail should be generally made in the Sessions Court but there are instances where the anticipatory bails have been directly granted by the High Court as the power to grant anticipatory bail is vested with Sessions as well as High Courts. The proper approach would be to file an application in the Sessions Court and then if the same is rejected then to move the High Court. If a person files a anticipatory bail in the High Court first and his anticipatory stands to be rejected, then it would be binding on the Sessions Court and that would be like waiving off your right to apply in the Sessions Court. What if the Sessions Court rejects the application and the applicant is arrested? Let us assume that the application for anticipatory moved in the Sessions Court is rejected and the applicant still apprehends that before moving his bail application in the Honble High Court, the police arrest the applicant.. well the lawyer can move an application asking for interim protection to be extended till moving the High Court and this has been held good in the case of KSS Rajput vs. State of Maharashtra. But, this is a discretionary power in the hands of the Sessions Judges and needs a very good argumentative skills. Lastly the most important thing is that anticipatory bail should not be moved merely because the applicant feels to do so because it is not the provision which allows the crime to be committed and the protection be given but only in cases where there is a substantial chance of the applicant being falsely involved or the liberty of the applicant shall stand at stake for no fault of his own.