Public Grievance

Anticipatory Bail in India is a provision that allows a person to seek bail in anticipation of an arrest on an accusation of having committed a non-bailable offense. The provision is defined under Section 438 of the Code of Criminal Procedure (CrPC), 1973. Here’s a step-by-step guide on how to obtain anticipatory bail in India:

What is Anticipatory Bail?

Anticipatory bail is a direction to release a person on bail even before the arrest is made. It provides protection against being arrested for a non-bailable offense and allows the person to remain out on bail while the investigation is ongoing.

Conditions for Seeking Anticipatory Bail:

1. Non-bailable Offense: You can only seek anticipatory bail if there is a threat of being arrested for a non-bailable offense. For bailable offenses, regular bail is sufficient.
2. Apprehension of Arrest: The person must have a reasonable fear of arrest based on a criminal complaint or First Information Report (FIR) filed against them.

Procedure for Applying for Anticipatory Bail:

1. Hire a Criminal Lawyer:
   1. To file for anticipatory bail, you will need the services of an experienced criminal lawyer. The lawyer will prepare a bail application that includes the necessary details and grounds for seeking anticipatory bail.
2. Draft the Bail Application: The bail application must include the following details:
   1. Your name, address, and other personal information.
   2. The offense for which the bail is being sought.
   3. The grounds on which you apprehend arrest.
   4. A summary of the facts and circumstances of the case.
   5. The FIR number, if an FIR has already been registered.
   6. Assurances that you are willing to comply with any conditions imposed by the court.
3. Approach the Appropriate Court:
   1. Depending on the seriousness of the offense and the level of court handling the matter, you may approach either the Sessions Court or the High Court:
      1. Sessions Court: The first point of filing an anticipatory bail application is typically the Sessions Court in the district where the offense is alleged to have been committed.
      2. High Court: If the Sessions Court denies your application, you can file a fresh application in the High Court.
4. File the Application:
   1. Your lawyer will file the anticipatory bail application in the appropriate court. The application must include the grounds for seeking anticipatory bail and must be supported by an affidavit.
5. Hearing and Notice to the Public Prosecutor:
   1. Upon receiving your application, the court may issue a notice to the Public Prosecutor and the complainant. The Public Prosecutor or complainant may present their arguments against granting anticipatory bail.
   2. Your lawyer must present strong arguments in favor of granting anticipatory bail, citing relevant legal grounds, facts of the case, and any precedents that support your position.
6. Court’s Decision:
   1. After hearing both sides, the court may either:
      1. Grant anticipatory bail with conditions (e.g., surrendering the passport, cooperating with the investigation, not leaving the jurisdiction, etc.).
      2. Reject the application if it finds that the accused’s apprehension of arrest is not based on substantial grounds or that there is a risk of tampering with evidence or influencing witnesses.
7. Comply with the Bail Conditions:
   1. If the court grants anticipatory bail, it will be subject to specific conditions. You must strictly comply with these conditions, failing which your bail can be canceled.

Points to Note Regarding Anticipatory Bail:

1. Not Absolute or Automatic:
   1. The grant of anticipatory bail is not automatic. The court will consider factors like the seriousness of the offense, the probability of the accused tampering with evidence, and the likelihood of influencing witnesses.
2. Conditions Imposed by the Court:
   1. Courts usually impose certain conditions on the applicant while granting anticipatory bail, such as:
      1. Regularly reporting to the police station.
      2. Not leaving the country or jurisdiction without prior permission.
      3. Cooperating with the investigation.
3. Validity of Anticipatory Bail:
   1. Generally, anticipatory bail remains valid until the end of the trial unless it is canceled by the court. However, the Supreme Court has held that courts can limit the duration of anticipatory bail in certain cases.
4. Cancellation of Anticipatory Bail:
   1. Anticipatory bail can be canceled if the accused violates any of the conditions imposed or if new facts come to light that were not available at the time of granting bail.

Factors Considered by the Court for Granting Anticipatory Bail:

1. Nature and Gravity of the Offense: The seriousness of the crime and the manner in which it was committed.
2. Antecedents of the Applicant: Whether the accused has any criminal record or is a habitual offender.
3. Possibility of Fleeing from Justice: Whether there is a likelihood that the accused may abscond if released on anticipatory bail.
4. Likelihood of Tampering with Evidence or Witnesses: The court assesses whether the accused may interfere with the investigation.
5. Past Conduct and Reputation: The character and social standing of the applicant.

Conclusion:

Obtaining anticipatory bail in India is a legal safeguard for those who fear arrest for non-bailable offenses. It protects an individual’s freedom while ensuring that they cooperate with the investigation and judicial proceedings. It is crucial to approach the appropriate court with the help of an experienced lawyer, who can present a well-prepared application and argument in favor of granting anticipatory bail.