Anticipatory Bail

Anticipatory bail is the legal privilege that enables a person to apply for bail beforehand if he or she has a belief that he or she is likely to be arrested for a non-bailable offense. This idea was under the heading of protecting individual freedom and is meant to guard against abuse of authority to arrest. Here is a detailed analysis of anticipatory bail legislation concerning provisions of the law, judicial precedents, exceptions, and requirements under the Bharatiya Nagarik Suraksha Sanhita (BNSS). 

Provision under Section 438 of the Criminal Procedure Code

As per Section 438 of CrPC, if any person thinks that he may be arrested on the accusation of commission of a non-bailable offense, he may apply for anticipatory bail in the High Court or Court of Session. Based on the seriousness of the accusation, the conduct of the applicant, and the likelihood of the applicant running away, the court may grant anticipatory bail so that when the person is arrested he/she will be released on bail. 

What should I do if I suspect that false charges are being framed against me?

If you think that you are likely to be falsely accused of a non-bailable offense, then you should get in touch with the lawyer and file an anticipatory bail under section 438 CrPC in the Court of Session or the High Court. 

Is it possible for anticipatory bail to be given as soon as an FIR has been registered against me? 

Of course, anticipatory bail can be moved once there is filing of the FIR although the applicant has not been arrested yet.

Judicial Pronouncements 

Gurbaksh Singh Sibbia vs. State of Punjab (1980)

This is one of the landmark Supreme Court cases that has confirmed that bail can be granted before the arrest and this is not a right, but a privilege that the court can allow under certain conditions. This means that unless one had a reason to believe he or she would be arrested for a realistic, plausible reason, the court cannot grant anticipatory bail. The said judgment also elaborated that anticipatory bail can be granted after an FIR can be made but before arrest.

What does ‘reason to believe’ used in the context of anticipatory bail? 

The term ‘reason to believe’ means having belief in some facts that can be brought to the court, mainly suggesting that the applicant might be arrested for a non-bailable offense. 

Is anticipatory bail granted as a matter of right?

No, anticipatory bail is not granted as a matter of right of the person, who has reason to believe that he may be arrested based on wrongful or illegal events staged against him. When considering the applications, the court will take into consideration factors such as the nature of the offense and the track record of the applicant as related to the crime.

Salauddin Abdulsamad Shaikh vs. State of Maharashtra (1995)

Subsequently, the Supreme Court in this case overruled the judgment delivered in Gurbaksh Singh Sibbia and held that anticipatory bail ought to be granted for a limited period. The court was keen to point out that the right to anticipatory bail does not last indefinitely and must be effective for a limited time only after which an accused person has to present himself to the police or ordinarily seek bail. 

How much time is allowed for anticipatory bail?

The period of anticipatory bail cannot be for an indefinite period as such it is granted for a specified period and thereafter the accused either has to apply for bail or be available for arrest. 

What are the consequences of the anticipatory bail granted if the period specified has expired? 

In case the period elapses the accused has no option but to surrender himself or herself over to the law or seek an extension from the court. Failing to do so may lead to arrest.

SS Mhetre vs. State of Maharashtra & Ors (2010)

This case made it clear that the life or the period of an anticipatory bail order should in no way be shortened unless there are certain exigent circumstances. The Supreme Court pointed out that anticipatory bail is provided with the view to protect the liberty of a person and therefore, it can not be arbitrarily limited

Are there chances that the duration of anticipatory bail can be extended? 

Of course, the court can make additional decisions on the increase of the period of anticipatory bail depending on the circumstances. 

In which cases can anticipatory bail be Cancelled? 

The anticipatory bail can also be canceled if the accused has violated the conditions as per the orders of the court or if due to new evidence coming into light, the arrest could be justified. 

Sushila Aggarwal and others v. State (NCT of Delhi) (2020)

As for this case, the Supreme Court held that anticipatory bail should not be limited to a particular period and it can be extended for the trial period. This judgment and the interpretation of the law further supported the argument that anticipatory bail is one of the rights of personal liberty which should not be abused by detaining individuals where there is no legal justification for detention. 

Is there a time limit on anticipatory bail as per the latest rulings?

However, the Supreme Court of India has made it clear that anticipatory bail cannot be confined to a fixed period and it can remain in force till the trial is over. 

To what extent is it possible to apply anticipatory bail for grave crimes?

Yes, anticipatory bail can be granted even for a serious offense, but the court before doing so takes into consideration the seriousness of the offense among other factors.

Conditions for Granting Anticipatory Bail

When granting anticipatory bail, the court may impose certain conditions, such as:

• The accused must also make himself or herself available for interrogations as may be deemed necessary. 
• The accused cannot destroy evidence or attempt to influence a witness. 
• The accused cannot travel or leave the country without the court’s permission. 

What are the conditions that can be laid down by the court while extending anticipatory bail?

The judge can set conditions such as reporting to the police once in a while, not being allowed to travel out of the country, and avoiding tampering with any evidence or influencing any witnesses. 

What are the consequences of breaching the anticipatory bail conditions?

In the same situation, the court may revoke the bail amount and order the arrest of the accused on the spot. 

Grounds for Cancellation of Anticipatory Bail

Since anticipatory bail has been granted under sections 437(5) and 439 of CrPC, the court that has granted anticipatory bail has the jurisdiction to recall the said order if changed circumstances or facts have arisen requiring the arrest of such person. The arrest of the accused can also be ordered where the prosecution or the complainant has applied for cancellation and the court appreciates the application. 

Can anticipatory bail be canceled? 

However, anticipatory bail can be canceled under the grounds that the accused has violated the terms of the bail or more evidence requires arrest. 

Who can apply for the cancellation of anticipatory bail? 

To claim cancellation of the anticipatory bail, the prosecution or the complainant can submit relevant facts and circumstances to the concerned court. 

What are the provisions in the Law for anticipatory bail under Bharatiya Nagarik Suraksha Sanhita (BNSS)? 

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS) has introduced new provisions related to anticipatory bail under Section 482, which include:

Subsection (1): Application for Bail Direction, even a person who thinks he may be arrested for a non-bailable offense may apply for this direction to the High Court or the Court of Session. The court may order that the person be released on bail if he or she is arrested. 

Subsection (2): Bail Direction Conditions, depending on the circumstances of the case, the court can set conditions based on the following factors: 

• Police interrogation must be done hence the person must be available. 
• The person also should not threaten or coerce anyone connected with the case. 
• It has been provided that the person cannot move out of India without the permission of the court. 

Subsection (3): Arrest and Bail Procedure, if the person has been arrested without a warrant they shall be released on bail upon giving security as required. Whatever warrant is issued, must always be a bailable warrant. 

Subsection (4): Specific Exclusion, there were specific offenses in respect of which the provisions of anticipatory bail do not apply and these included offenses under Section 65 and Subsection (2) of Section 70 of the Bharatiya Nyaya Sanhita, 2023. 

Is BNSS applicable to all kinds of offenses? 

However, BNS has listed several heinous offenses which do not allow anticipatory bail to be applied. 

Does it mean that conditions under BNSS can be more stringent than under CrPC? 

Indeed they can, under the conditions provided for in BNSS the court can provide even stricter measures depending on the type of offense or any other circumstances in the case. 

Frequently asked questions 

What is the meaning of anticipatory bail and how is it different from other bails? 

Anticipatory bail is sought before arrest while bail as referred to as regular bail is sought after the arrest of the accused. 

Can anticipatory bail be applied for a bailable offense? 

Whereas anticipatory bail can only be granted for non-bailable offenses. 

Does the provision of anticipatory bail apply to economic offenses? 

Of course, this is true but the court will always take into account mitigation factors like the nature of the offence among other factors. 

What should one do if anticipatory bail is rejected? 

If anticipatory bail is rejected, the accused can surrender and apply for ‘bail’ or appeal to the higher court. 

Is it possible to get anticipatory bail after filing of chargesheet? 

Yes, anticipatory bail can be granted when the charge sheet has been filed but before the arrest has been made. 

What are the consequences of the accused receiving anticipatory bail only for him/her not to show up in court? 

It remains for the court to order the cancellation of the bail and for the issue of a warrant for the arrest of the accused. 

Is it possible for the police to arrest a person who has been given anticipatory bail? 

In the event the court has so ordered anticipatory bail then the police cannot arrest the said person unless the terms of the bail are violated or the anticipatory bail was rescinded. However, if the police wish to arrest the individual even after this grant of anticipatory bail then they require the permission of the court. 

What is the process followed for the anticipatory bail application? 

Further, the person who expects that an arrest might be made can make an application for anticipatory bail in the High Court or the Court of Session. An affidavit should accompany the application and should contain matters such as the offense for which the subject is to be arrested, the subject’s profile, and the grounds for seeking anticipatory bail. 

Whether an anticipatory bail can be moved when an FIR has not been filed at all? 

Yes, anticipatory bail can be sought even where no FIR has been filed a person can claim that he has a bona fide apprehension that he may be arrested based on information or communicated threat. 

Does anticipatory bail mean bail for other charges also relating to the same case? 

No, anticipatory bail does not apply to other offenses once granted for a specific offense of the case. In case new charges are filed against the accused, then he may require obtaining new anticipatory bail for the newly framed charges. 

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