How to Apply for Anticipatory Bail?
How to Apply for Anticipatory Bail?
1. What is Anticipatory Bail?
Anticipatory bail is a direction given by a court to a person who apprehends arrest on accusation of having committed a non-bailable offense. It means that the person will not be arrested and will be released on bail immediately if police try to arrest them.
This concept is provided under Section 438 of the Code of Criminal Procedure (CrPC), 1973.
2. Legal Provision
Section 438 CrPC:
When a person has reason to believe that they may be arrested for a non-bailable offense, they may apply to the High Court or the Court of Session for a direction to grant bail in anticipation of arrest.
3. Who Can Apply?
The person who anticipates arrest for a non-bailable offense can apply for anticipatory bail.
This includes situations where the police have not yet arrested the accused but the accused fears arrest.
4. Procedure for Applying Anticipatory Bail
Step 1: Filing an Application
The application must be filed before the High Court or the Court of Session.
It is a written application usually submitted through a lawyer.
It should contain the grounds on which the applicant fears arrest.
Step 2: Content of the Application
Personal details of the applicant
Details of the offense and FIR (if any)
Reasons for apprehension of arrest
Assurance to cooperate with the investigation
Step 3: Hearing by the Court
The court examines the facts, seriousness of the offense, likelihood of the applicant fleeing justice, or tampering with evidence.
The court may hear the Public Prosecutor representing the state.
Step 4: Grant or Refusal
The court can grant anticipatory bail with conditions such as:
The applicant shall cooperate with the investigation.
The applicant shall not threaten or influence witnesses.
The applicant may be required to furnish a bond or surety.
The court can also refuse anticipatory bail if it finds the grounds insufficient.
Step 5: Effect of Order
If granted, the applicant will be released on bail if arrested.
The order can be for a specific period or until the conclusion of the trial.
5. Important Conditions and Points
Anticipatory bail is generally for non-bailable offenses.
The court may cancel anticipatory bail if the applicant misuses the liberty.
The right to anticipatory bail is discretionary, not absolute.
If the police arrest the person despite the bail order, the person can approach the court for enforcement.
6. Relevant Case Laws
1. Gurbaksh Singh Sibbia v. State of Punjab (1980)
Significance: This landmark judgment laid down guidelines for granting anticipatory bail.
Held: Bail should not be refused merely because the offense is serious; the court must consider the nature of the accusation and likelihood of the applicant fleeing or tampering with evidence.
Principle: The court must balance the right to liberty with the interest of justice.
2. Sushila Aggarwal v. State (Delhi Administration) (2001)
Held: The discretion to grant anticipatory bail should be exercised keeping in mind the facts of each case.
The court emphasized that bail is the rule and jail is the exception.
3. Siddharam Satlingappa Mhetre v. State of Maharashtra (2010)
Held: Anticipatory bail is not a right but a discretion. Courts must consider if the accusation is prima facie true, the seriousness of the offense, and chances of the accused evading investigation.
4. Rajiv Gandhi v. State (1992)
The Supreme Court observed that anticipatory bail can be granted in cases where the applicant is not likely to abscond or tamper with evidence.
7. Summary: Essential Points
| Aspect | Details |
|---|---|
| Provision | Section 438, CrPC |
| Who can apply? | Person fearing arrest for non-bailable offense |
| Where to apply? | High Court or Court of Session |
| Key considerations | Nature of offense, prima facie truth, chances of absconding or tampering evidence |
| Conditions imposed | Cooperation with investigation, non-interference with witnesses, bond/security |
| Discretionary power | Yes, anticipatory bail is not a right but a court’s discretion |
| Duration | Specified period or until trial ends |
8. Practical Tips
Always apply for anticipatory bail before arrest.
Provide full and truthful facts in the application.
Engage an experienced lawyer who can present the case effectively.
Ensure compliance with bail conditions once granted.
If anticipatory bail is rejected, regular bail can be applied after arrest.
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