Monday, 8 March 2021

How to apply for Anticipatory Bail Application


What is Anticipatory Bail?

Anticipatory bail is granted under Section 438 of the Criminal Procedure Code when a person has the apprehension of arrest in criminal cases. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment has been passed in his case. Depending on the gravity of the allegations, a person may be able to avoid arrest, however, a person can apply for anticipatory bail even before a First Information Report (FIR) has been filed against him, on anticipation that he has reasonable grounds to believe to be arrested.

In cases of criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused persons.

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Anticipatory Bail Application

Anticipatory bail is applied for in anticipation of arrest. It is a direction to release a person on bail, issued before the person is arrested. If the person has a reason to believe that he might get arrested for a crime for which he has been falsely implicated, then he has the right to apply for this type of bail. One may apply for anticipatory bail after learning that a criminal complaint has been filed against him. It is also important to know whether, in cases where the FIR has been filed, the offence is bailable or non-bailable. Since in the former bail is granted as a matter of right, the grant of bail in the latter is based on several contingencies.

Consult: Top Criminal Lawyers in India


How to Apply for Anticipatory Bail?

Given below are steps to apply for an anticipatory bail:

1. 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 or FIR 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.

2. Get the lawyer to draft an anticipatory bail mentioning your version of the facts

The Lawyer would 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. 

3. Apply at the appropriate district court or high court

Once the application for anticipatory bail is drafted the advocate will file the same at an appropriate Sessions Court.

4. Hearing of the Bail Application

When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case to be fit for granting anticipatory bail, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made to the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court.

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Procedure for anticipatory bail application in India

The procedure followed will alter depending on whether or not an FIR has been filed.

1. When FIR is not Filed

The public prosecutor will talk to the police officer concerned

Since no FIR has been filed, the prosecutor will be of the view that there are no grounds for granting anticipatory bail

The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail

The lawyer will then make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest you/your family

In all likelihood, the judge will grant this plea

An order will be passed accordingly. This is called the ‘notice bail’ commonly.

If the bail application is rejected, you could apply to the High Court.

If the High Court also rejects the bail, you could apply to the Supreme Court

Consult: Top Criminal Lawyers in India

2. When FIR is Filed

In cases when the FIR has been filed, the Investigating Officer will send a notice of arrest

As soon as this notice is received, one should apply for anticipatory bail following the same procedure as stated above


Bailable and Non-Bailable Offences

Depending on the kind of offence that the police have registered, a person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC).

Sec 436 provides that when any person other than a person accused of a non-bailable offences is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail.

[Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.]

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Conditions that may be Imposed by the Court:

The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:

a condition that the person shall make himself available for interrogation by the police officer as and when required;

a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

a condition that the person shall not leave India without the previous permission of the court.


Cancellation of bail

An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution in case any of the conditions imposed by the Court are being violated.

Learn what is cognizable and non-cognizable offences and the difference between them with the help of this criminal law guide.

Consult: Top Criminal Lawyers in India


Why do you need a lawyer?

If you or someone you know if faced with an arrest, or has an apprehension of an arrest, the first step, despite the charges or nature of the offence should be to engage the services of a criminal lawyer. With the numerous kinds & nature of offences and the rights that flow along with such offences, a lawyer’s expertise will help ensure that the bail applications are filed timely, rights of the person are protected at every step of the process of arrest and beyond, and that the trial is conducted more smoothly.

A criminal lawyer can help ensure that the protocol and law as discussed above regarding bail, arrest and trial is followed by the police authorities properly and that no additional harm is caused to the person. Only a lawyer can best advice on the course of action to be adopted upon apprehension of arrest and ensure that the appropriate relief such as bail can be obtained at the earliest in the special circumstances of each case. Given the vast knowledge that the layman may not possess regarding the criminal justice system, a lawyer’s guidance becomes extremely important during such sensitive situations.

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