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All about Anticipatory Bail in India

 All about Anticipatory Bail in India

By Shweta Nair


The concept of Anticipatory Bail in India was previously never there. It was only when the Code of Criminal Procedure was amended in the year 1973 that this section of 438 was included under Chapter 33. And this comes after the Law Commission in its 41st report recommended to include it in the code. This concept has been originated from the famously drafted constitution known as Magna Carta by the King John of England in 1200’s. Bail aids in setting a person free which is related to the right to life and personal liberty which is one of the fundamental rights guaranteed by the Constitution under Article 21 whereas arrest is exactly the opposite of it which denies an individual from this right. 


What is the meaning of Anticipatory Bail?

Anticipatory Bail under Section 438 implies a bail applied in expectation of arrest. Here, the person who is having an apprehension that he might be arrested for a non-cognizable offence, has the right to apply to a High Court or a Session’s Court. It is in the discretion of the court whether to grant him anticipatory bail or not. 


Procedure for Application of Anticipatory Bail

Once FIR has been lodged, it would be decided by the advocate whether an application for pre-arrest notice, notice bail or anticipatory bail have to be filed. Then an anticipatory bail application will have to be drafted citing the reasons for bail application. The anticipatory bail application has to be firstly presented in the Session’s Court. If there are any special circumstances or it gets rejected in the Session’s Court, it can be then applied to the High Court and if it gets rejected there also, it can be applied to the Supreme Court. The applicant can approach any court which he feels is included in his jurisdiction wherein he is anticipating his arrest. The territorial jurisdiction of the court doesn’t matter. An anticipatory bail will still be allowed to be filed. 



Under what circumstances will the court grant an anticipatory bail

  • Political Enmity- where complainant has lot of influence and power. 

  • Intention to cause harm to the applicant’s reputation

  • Vague allegations against the accused

  • FIR not filed properly wherein name of the accused is not mentioned. 

  • Apprehension that he may be arrested

  • That the accused wouldn’t abscond and that he has no antecedents and will not hinder investigation or other procedures. 

It will be exercised only under few circumstances like the ones mentioned above that too sparingly which is entirely in the court’s discretion. 


While granting anticipatory bail, few conditions like being available whenever the police officer calls for interrogation, not to leave India without court’s prior consent, not to dissuade anyone by threat or inducement from disclosing facts to the court etc. shall be obligatory to be followed and strictly looked upon by the court. 


Refusal to grant bail:

The court may refuse to grant anticipatory bail in circumstances where the person who is anticipating such an arrest has already been imprisoned earlier, or there are chances that the person may escape or flee, or is proficient in manipulating investigation to his benefit, or if prima facie case can be made out etc. 


In Sushila Agarwal v. State of Delhi, it was held by the Supreme Court that section 438 of CrPC should not be limited to any time period but if any special reasons exist to put a restriction on the time limit, then it may freely do so. 

In the case of Badresh Bipinrai Seth v. State of Gujarat, the court held that Article 21 and Section 438 goes hand in hand, and therefore the legislature has upheld fundamental rights of the citizens. 

In Suresh Vasudeva v. State, it was held that anticipatory bail can be applied only for non-cognizable offences. 

Clearly, Section 438 goes hand in hand with personal liberty under Article 21 of the Constitution. But it is to be remembered that it has to be exercised only in exceptional cases. Otherwise anyways there are people who take advantage of such laws and get away with the arrest. Anticipatory bail should be granted only after considering certain conditions such as behaviour of the applicant, gravity and nature of offence etc. 


References: 

  1. https://www.indiafilings.com/learn/get-anticipatory-bail/

  2. https://www.lawyered.in/legal-disrupt/articles/anticipatory-bail-indian-context/

  3. https://www.legalserviceindia.com/legal/article-41-anticipatory-bail.html

  4. https://corporate.cyrilamarchandblogs.com/2021/01/decoding-the-law-on-anticipatory-bail/

  5. https://www.mondaq.com/india/crime/982502/anticipatory-bail-and-its-laws




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