How to Apply for Anticipatory Bail?

In criminal law, the concept of anticipatory bail serves as a crucial legal safeguard for individuals who apprehend arrest due to accusations of committing non-bailable offenses. The provision of anticipatory bail, embedded in Section 438 of the Criminal Procedure Code (CrPC), 1973, allows an individual to seek bail in anticipation of arrest, ensuring protection from unnecessary detention.

This article provides an in-depth explanation of the process of applying for anticipatory bail, the factors courts consider while granting such bail and the essential conditions that come along with it.

What is Anticipatory Bail?

Anticipatory bail refers to a legal remedy provided under Section 438 of the CrPC, where a person who anticipates arrest can seek bail before the actual arrest occurs. It is also known as pre-arrest bail. Unlike regular bail, which is sought after an arrest, anticipatory bail offers pre-emptive protection from arrest for non-bailable offences.

The objective of anticipatory bail is to prevent harassment, unnecessary detention or malicious prosecution based on false allegations. It ensures that individuals are not deprived of their liberty unless it is absolutely necessary under the law.

Legal Provisions for Anticipatory Bail

The legal framework for anticipatory bail is set out under Section 438 of the CrPC. The section empowers the High Court and the Court of Session to grant anticipatory bail to any person who has a reasonable apprehension of being arrested on allegations of committing a non-bailable offense.

According to Section 438(1):

“When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction that in the event of such arrest, he shall be released on bail.”

Who Can Apply for Anticipatory Bail?

Any person who believes they might be falsely implicated in a non-bailable offence can apply for anticipatory bail. The most common reasons for seeking anticipatory bail include:

• False accusations: Where someone is falsely accused of a crime due to personal enmity, rivalry or malice.
• Fear of arrest: Where a person has genuine reasons to believe that their arrest is imminent based on complaints or reports, often before an FIR is registered.

However, anticipatory bail cannot be granted to individuals who have already been declared proclaimed offenders under Section 82 of the CrPC. This was clearly articulated by the Supreme Court in State of M.P. v. Pradeep Sharma (2013), where the court ruled that a person evading the law or refusing to cooperate with investigations does not deserve the protection of anticipatory bail.

Where to Apply for Anticipatory Bail?

An application for anticipatory bail can be made to either:

1. The High Court: If the offence pertains to a specific state’s jurisdiction, the person can approach the High Court of that state.
2. The Court of Session: If the matter concerns a particular district or area, the Court of Session in that district has the authority to grant anticipatory bail.

The choice of court typically depends on the gravity of the case, the region where the alleged offence occurred and the applicant’s assessment of the likelihood of a favourable ruling.

Procedure for Applying for Anticipatory Bail

The process of applying for anticipatory bail involves several steps, beginning with filing the application and ending with the court’s final decision. Below is a step-by-step guide on how to apply for anticipatory bail:

1. Drafting the Application

The first step is to prepare a petition for anticipatory bail. While drafting the application, the accused (through their lawyer) must highlight the following crucial points:

• Nature of the accusation: A clear explanation of the allegations made against the accused.
• Fear of arrest: The reasons why the accused believes they might be arrested.
• No requirement for custodial interrogation: A statement affirming that the accused is willing to cooperate with the investigation and that custodial interrogation is unnecessary.
• No likelihood of tampering with evidence: The accused must assure the court that they will not tamper with evidence or interfere with witnesses.
• No criminal history: If applicable, the accused can mention the absence of any prior criminal record.
• Willingness to cooperate: The accused should express readiness to comply with all court-imposed conditions.

It is important to consult an experienced lawyer to ensure the application is drafted thoroughly, as any oversight can result in the rejection of the bail plea.

2. Filing the Application

Once the application is prepared, it must be submitted to the appropriate court. The application for anticipatory bail can be filed either with the High Court or the Court of Session, depending on the jurisdiction of the alleged offence.

3. Court’s Consideration of the Application

Upon receiving the application, the court will evaluate the merits of the case. Several factors are considered by the court before granting anticipatory bail, including:

• Nature and gravity of the offence: If the offence is serious, the court may deny anticipatory bail.
• Antecedents of the accused: The court will consider whether the accused has a history of committing crimes or evading the law.
• Possibility of absconding: If the accused is likely to flee from justice, anticipatory bail may not be granted.
• Motive behind the accusation: If the complaint appears to be motivated by malice or personal vendetta, the court may be more inclined to grant anticipatory bail.
• Cooperation with investigation: The accused’s willingness to cooperate with the investigation is an important factor.

Courts are also guided by precedents in previous cases, such as Brijesh Singh v. State of Karnataka (2002), where the court ruled on the parameters to be considered while granting anticipatory bail.

4. Show Cause Notice

If the court is inclined to grant interim anticipatory bail, it will issue a show cause notice to the Public Prosecutor and the Superintendent of Police, giving them an opportunity to oppose the bail. The final decision on the anticipatory bail application will be made after hearing arguments from both sides.

5. Final Hearing

The final hearing is conducted in the presence of the accused, who is required to be present if the court deems it necessary. The court will pass a final order based on the submissions of the prosecution and defence.

6. Grant of Anticipatory Bail

If the court finds merit in the application, it will grant anticipatory bail, subject to conditions. These conditions often include:

• Availability for interrogation: The accused must make themselves available for police interrogation whenever required.
• Non-interference with witnesses: The accused must not intimidate, threaten or influence witnesses in any way.
• No travel without permission: The accused must not leave the country without the court’s prior permission.

Failure to comply with these conditions can result in the cancellation of anticipatory bail.

What are the Conditions for Granting Anticipatory Bail

The court may impose certain conditions when granting anticipatory bail to ensure the accused’s cooperation with the investigation. These conditions, outlined in Section 438(2) of the CrPC, include:

1. Making the accused available for police interrogation as and when required.
2. The accused shall not make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or the police.
3. The accused shall not leave India without the previous permission of the court.
4. Any other conditions the court deems necessary to prevent tampering with evidence or obstructing justice.

When Can the Court Refuse Anticipatory Bail?

Anticipatory bail can be refused in certain circumstances, including:

• If the offence is grave, such as cases involving heinous crimes, anticipatory bail may be denied.
• If the accused has a criminal history or is declared a proclaimed offender.
• If there is a strong likelihood that the accused will abscond or not cooperate with the investigation.

Impact of Rejection of Anticipatory Bail

If the Sessions Court or High Court rejects the anticipatory bail application, the applicant has the option to approach the Supreme Court. The decision of the court can also be challenged in appeal.

Difference Between Anticipatory Bail and Regular Bail

The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980) clarified the distinction between anticipatory bail and regular bail. Regular bail is granted after the arrest and it means releasing a person from police custody. Anticipatory bail, on the other hand, is a preventive measure, effective at the time of arrest.

Recent Developments in Anticipatory Bail Law

The Supreme Court has provided clarity on anticipatory bail through various rulings. For instance, in Rukmani Mahato v. State of Jharkhand (2017), the court ruled that no regular bail should be granted if interim anticipatory bail is still pending in a higher court. This ruling ensures that lower courts do not override decisions made by superior courts, preserving the integrity of the judicial process.

Conclusion

Anticipatory bail is an essential legal provision that protects individuals from wrongful arrest and harassment in criminal cases. While applying for anticipatory bail, it is crucial to follow the proper procedure, ensure that the application addresses all relevant factors and comply with any conditions imposed by the court. With proper legal representation and adherence to the law, anticipatory bail can safeguard an individual’s freedom while ensuring justice is served.