WHAT IS ANTICIPATORY BAIL?
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Here is an explanation of Anticipatory bail given by the Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
- 35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
- Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
- Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.
- After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.
- The nature and gravity or seriousness of accusation as apprehended by the applicant;
- The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
- The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
- The possibility of the appellant, if granted anticipatory bail, fleeing from justice.
Here is a post that clarifies it all: SC Explains Anticipatory Bail – 2009
When Can A Person Apply For AB ?: When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him. He has the right to move the Court of Session or the High Court under section 438 of the code of Criminal Procedure for 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.
Conditions That May Be Imposed By The Court: The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
· 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.
Arrest: If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
Anticipatory Bail Not A Blanket Order: The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
Cancellation: An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Anticipatory Bail Not Available In Uttar Pradesh
- Click here for the steps to get AB
- SC 498A AB Judgment Explaining Some Misconceptions – 2003
- Advice On Getting Regular Bail