Anticipatory bail, as the name suggests, bail is granted to a person in anticipation and apprehending arrest. It is a preventive relief that was not originally included in The Code of Criminal Procedure, 1973 (‘CrPC’). The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases to disgrace them or for other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offense is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. The very purpose of the provisions relating to anticipatory bail is to ensure that no person is confined in any way until and unless held guilty.

When a person has reason to believe that he may be arrested on the accusation of committing a non-bailable offense then he can move to the High Court or the Court of Session u/s 438 of CrPC for anticipatory bail. There are certain factors which are considered while granting anticipatory bail such as-

  • Nature and gravity of accusation,
  • The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offense,
  • The possibility of the applicant to flee from justice,
  • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

When the court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and therefore, it is only on arrest that the order granting anticipatory bail becomes operative. Issuance of a summon for appearance also entitles an accused to apply for anticipatory bail. It has also been held that anticipatory bail cannot be granted to a person to do something likely to be interpreted as a commission of a crime even if the offender intended it as something in the exercise of his rights. The distinction between an ordinary bail and an order of anticipatory bail is that the former is granted after arrest, which means release from the custody of the police, whereas, the latter is granted in anticipation of arrest and is there effective at the very moment of arrest.

Conditions for Anticipatory Bail

The High Court or the Court of Sessions, while granting anticipatory bail may impose conditions as mentioned u/s 438(2). The conditions mentioned in that sub-section are only illustrative and the court may impose other conditions, it thinks fit, to strike a balance between the individual’s rights to personal freedom and the investigational rights of the police. The conditions imposed while granting such bail are –

  • The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.
  • The applicant should not leave the country without the previous permission of the court.
  • The applicant should submit a local residential address, native address, and contact number to the concerned police station.
  • The applicant should not make any inducement, threat, promise, etc. to any person acquainted with the facts of the case.

The court granting anticipatory bail cannot impose the condition that the direction to be released on bail will be applicable for a specified number of days after arrest because the effect of such order would be to disable the applicant from applying for regular bail u/s 437 of CrPC immediately after arrest, before the period mentioned in the order is over. Section 438 does not entitle the court to override the provisions of Section 437 and to stay for a certain period the right of the applicant to apply and to obtain his release on bail.

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