Anticipatory Bail

Anticipatory Bail
Karnataka High Court
Family Court
Chief Metropolitan Magistrate
Anekal Court
Cjm Chief Judiciary Magistrate Court

What is Anticipatory Bail?

As a common person whenever you anticipate that you can be arrested because either someone has registered a complaint against you or threatened to register a complaint against you whether false or true then you should apply for anticipatory bail either at Court of Session or High Court at the earliest to avoid arrest and custody by the police.

Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Indian Constitution and it is considered as one of the precious rights. Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973 which enables everyone to apply for anticipatory bail either to High Court to Court of Session when in apprehension of arrest due to some false charges or real complaint lodged against him in a police station. Section 438 of the Criminal Procedure Code 1973 allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence and this provides a great respite to those people who are falsely implicated in cases.


Anticipatory Bail Lawyers in Bangalore

There are many Lawyers in Bangalore who can help you to get the Anticipatory bail. You must contact the right lawyer in Bangalore who can help you on time. If not acted upon time can make things complicated.

From the list above you get the Anticipatory Bail Lawyers in Bangalore who are expert in their field. Lawyers in Bangalore are helping the needy clients to get the anticipatory bail as applicable on case-to-case basis.


How to get Anticipatory Bail under Section 438 of CrPC ?

Whenever a situation arise that makes a person to believe that he may be arrested on accusation of having committed a non-bailable offence, he needs apply to the High Court or the Court of Session for a direction under section 438 of CrPC that in the event of such arrest he shall be released on bail. Usually, the court provides anticipatory bail after taking into consideration the following crucial deciding factors, namely-

1. the nature and gravity of the accusation.

2. the antecedents of the applicant and any previous history of imprisonment or conviction by a Court in respect of any cognizable offence

3. the possibility of the applicant to flee from justice.

4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested issue an interim order for the grant of anticipatory bail.

As soon as the High court or court of session grants interim bail to the applicant then the court issues a show cause notice attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

The presence of the applicant seeking anticipatory bail is mandatory at the time of final hearing of the application and passing of final order by the Court, if Public Prosecutor makes such an application.

Conditions for obtaining the anticipatory bail

The High Court or the court of the session can include such conditions in the light of the facts of the particular case, which may include;

-          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.

Offences and Anticipatory Bail

An application for anticipatory Bail can be filed in cases of both bailable and non-bailable offences. While in the former situation, the Bail is granted as a matter of right, the grant of Bail in the latter situation is not a matter of right but a privilege and is at the behest of the discretionary power of the Court. The bail can be granted for both kind of offences but it all depends in many factors like as mentioned in the above section. Bail is not a right of he accused but a discretion of the court especially in the non-bailable offences.

Bailable Offence: Section. 436 of the CrPC lays down provision for granting Bail to a person accused of any bailable offence under the IPC.

Bailable offences are offences or crimes that are not very serious in nature and include for example unlawful assembly (Sec. 144 of CrPC), payment of bribe during elections, fabrication of false evidence, participation in riots, furnishing false information, causing death by negligence (Sec. 304A), stalking, criminal defamation, etc. In these kinds of offences getting bail is not a problem unless the accused has created a scenario by non-cooperation and being a habitual offender.

Non-bailable Offence: Sec. 437 of the CrPC lays down the power of court to grant Bail to a person accused of committing a non-bailable offence under the IPC.

Non-bailable offences are grave and serious offences which include: sedition, waging or attempting to wage war against the government, counterfeiting of Indian currency, murder (Sec. 302), dowry death (Sec. 304B), abetment of suicide, trafficking of a person, rape (Sec. 376), etc. In this kind of scenario getting bail is a bit difficult but not impossible.

Which laws govern the Anticipatory Bail

Section 438 of the CrPC lays down the provisions on anticipatory Bail:

Sec. 438(1): When any person anticipates that he/she may get arrested on an accusation of having committed a non-bailable offence, he/she may apply to the High Court or the Court of Session for a direction under this Section. The Court may direct (if it thinks fit) that in the event of such arrests, he/she shall be released on Bail even before an arrest is made without subjecting him/her to further restraints.

Sec. 438(2): When the High Court or the Session Court makes a direction under Sec. 438(1), it may lay down certain conditions in the light of the facts of the particular case, as it may think fit.

Cancellation of Anticipatory Bail

When a person who has been enlarged on bail fails to honour the terms and conditions of the bail bond or fails to cooperate with the police and investigation then on an application by the complainant or the prosecution his/her bail can be cancelled by the court.

Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. They imply that a Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts.

A High Court or Court of Session may direct that any person who has been released on Bail by it- be arrested, and brought under custody after filing of an application by the complainant or the prosecution.

Some important judgements related to Anticipatory Bail

Gurbaksh Singh Sibbia vs State of Punjab (1980) case: 

SC ruled that “Sec. 438(1) should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution.” Granting of anticipatory Bail as a matter of right of an individual should not be limited by time. The Court could impose appropriate restrictions on a case-by-case basis.

Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: 

SC overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time.”

Prathvi Raj Chauhan vs Union of India (2020) case, 

SC observed that Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 2018.

Recommended Reads