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How to Get Anticipatory Bail

How to Get Anticipatory Bail

How to Get Anticipatory Bail

Anticipatory bail can be obtained by a person who anticipates arrest. Hence, anticipatory bail is a direction to release a person on bail, even before the person is arrested. Anticipatory bail is applied for under Section 438 of the Criminal Procedure Code. In this article, we look at the procedure for obtaining anticipatory bail in India.

Reason for Obtaining Anticipatory Bail

Arrests are mainly made after a criminal complaint to secure the appearance of the accused at the time of trial and to ensure that, if guilty, he/she is available for sentencing. However, if the presence of the accused can be reasonably guaranteed during the period of trial and sentencing, then it would be unjust and unfair to deprive the accused of his/her liberty during the trial period.  Hence, if the courts believe that it would be unjust and unfair to arrest a person during trial, anticipatory bail is granted.

How to File An Anticipatory Bail Application

Under Section 438 of the Criminal Procedure Code, any person who apprehends or has reason to believe that he/she is likely to be arrested on false or trumped up charges, due to enmity with someone, or in connection with a false case lodged or likely to be lodged against him, may file an Anticipatory Bail application before a Court of Sessions or High Court for seeking grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

The filing of an Anticipatory Bail is of paramount importance, the moment an individual learns of the existence of a false case against him or the likelihood of a false case being filed against him. The first step would involve getting in touch with a lawyer and if possible acquiring a copy of the police complaint or First Information Report (FIR) lodged against the accused from the concerned police station. The lawyer will then prepare the Anticipatory Bail Application with all the requisite pleadings and file it along with his Vakalatnama (indicating representation of an accused) before the appropriate Court of Sessions or the High court, as the case may be.

On hearing the representations of the lawyer representing the accused in the Anticipatory Bail Application and thereafter hearing the representations of the Public Prosecutor representing the State in the Anticipatory Bail Application, the concerned court will decide first if the Accused makes out a case for bail or not. The court may first grant interim bail to the accused on hearing initial representations and decide to finally decide the Anticipatory bail application after final arguments are concluded.

The most important consideration for the court adjudicating an Anticipatory Bail application is to examine if the course of justice would be thwarted by an accused who seeks the benignant jurisdiction of the court to be freed for the time being.

The concerned High Court or Court of Sessions while granting Anticipatory Bail may find it necessary to impose certain conditions upon the applicant, in light of the specific facts of a particular case. These conditions may include the following:

  1. That the applicant must make himself available for the purpose of interrogation by the police authorities as and when necessary;
  2. That the applicant should 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;
  3. That the applicant should not leave the country or a specified territory without prior permission of the court.

An individual who has been granted Anticipatory Bail will not be taken into custody, until and unless the said Anticipatory bail granted stands cancelled by the court, as a result of a breach of an imposed condition. An application for cancellation of Anticipatory bail can be preferred by the prosecution or the first informant in a criminal case

Anticipatory Bail Conditions

While granting anticipatory bail, the Court can impose one or more of the following conditions based on the facts of the particular case:

  • Be available for interrogation by the police officer, as and when required;
  • 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;
  • Person shall not leave India without the previous permission of the court
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