Criminal Law

Anticipatory Bail

Anticipatory Bail stands as a significant legal provision ensuring the protection from Arrest by Police.

Section 438 of Cr.PC, 1973 speaks about the provision of anticipatory bail. The legal provision aims to prevent the misuse of judicial process.

The Indian legal system has a provision to safeguard the rights and liberties of individuals against wrongful arrest and detention.

The Section 438, providing right to seek anticipatory bail, thus its a milestone in the justice system of India.

Necessary of Pre-Arrest Bail

Anticipatory bail, as the term suggests, allows an individual to seek bail in anticipation of their arrest.

After registration of First Information Report, if someone has apprehension of arrest, he can file bail application.

An individual has to approach the court for bail before police arrest him, thereby preempting the possibility of detention.

This provision empowers individuals who fear imminent arrest due to false accusations, frivolous charges, or other malicious intents.

Jurisdiction of Court for Bail

To obtain pre-arrest bail, an individual must approach the Session Court then High Court & Apex Court.

Police officer can arrest the alleged accused for custodial police investigation because during interrogation of the accused new facts brought out. 

The court, upon hearing the arguments presented by the applicant and the prosecution, may grant  bail if satisfied that the applicant has a legitimate apprehension of arrest and that granting bail would not obstruct the course of justice.

If the accused is juvenile then the JJ Act has provided some rights of arrested person who is juvenile. Juvenile Board will not ordinarily grant Bail. 

Grounds for Anticipatory Bail

Prima Facie Case: The court assesses the facts of the case and evaluates whether there exists a prima facie case or not.

If the accusations appear frivolous or lack substance, the court may be inclined to grant pre-arrest bail.

Apprehension of Arrest: The applicant must demonstrate a genuine fear of imminent arrest based on reasonable grounds.

This could stem from threats, harassment, or the nature of the allegations leveled against them.

Cooperation with Investigation: Courts may consider whether the applicant is cooperating with the investigation authorities.

Full cooperation, including the willingness to appear for questioning and provide necessary assistance, may strengthen the case for bail.

Criminal Record: The applicant's past criminal record, if any, may influence the court's decision. A clean record may weigh in favor of granting pre-arrest bail, while a history of criminal activity could raise doubts regarding the applicant's credibility.

Likelihood of Fleeing Justice: The court evaluates whether granting anticipatory bail would pose a risk of the applicant absconding or tampering with evidence.

Adequate safeguards may be imposed to ensure the applicant's presence during the trial proceedings.

Cancellation of  Bail

Victim can file an application for Cancellation of Anticipatory, if the victims feels the Court has granted bail without considering gravity of offence.

State as well as Victim can also file application of Cancellation of Bail Application if the accused violates the conditions imposed by Court. 

Anticipatory Bail by Apex Court

If Session Court as well as High Court rejects bail application, individual can file anticipatory bail before Apex Court.

If any Legal Experts in Apex Court convinced to the Court to get pre-arrest bail by Apex Court.

After rejection of Bail Application by High Court, Individual can take help of Apex Court lega in Delhi for Bail Matters.

The Constitution Bench in this case emphasized that provision of pre-arrest bail enshrined in Section 438 of the Cr.PC.

The Hon’ble Apex Court held pre-arrest Bail is directly related to Article 21 of the Constitution which relates to personal liberty.

Bar of Anticipatory Bail under SC-ST Prevention of Atrocity Act, 1989

Section 18 of SC-ST Prevention of Atrocity Act, 1989 speaks that Section 438 of the Code does not apply to persons committing an offence under the Act.

As per Section 18 “Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”

A criminal advocate can file application for pre-arrest bail before Apex Court where prima facia no offence committed. 

The Hon'ble Supreme Court has many times held that police should not arrest automatically without prima facia case because advocates in Delhi have questioned such arrest many times.  

Frequently Asked Questions

If police officer could not complete police investigation within 60/90 days, will it go in favor of accused ? 

Yes, police could not complete the investigation within 60/90 days, Court is duty bound to enlarge the accused on regular bail.

Can Juvenile Justice Board grant anticipatory bail to a juvenile accused ? 

Answer: Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2000 do not provide the power to grant anticipatory bail to the JJ Board. Therefore, the Board has no jurisdiction to entertain application under section 438 of CrPC.

If there is no anticipatory bail in SC-ST Atrocity Act, 1989 then what is remedy to get stay on arrest ? 

Although there is bar of anticipatory bail in SC-ST Atrocity Act, 1989, but the Hon'ble Supreme Court has clarified that section of 438 CrPC shall not apply to the cases under the Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A(i) shall not apply.

What is time limit of Anticipatory bail, it is up to filing of charge sheet or completion of trial ? 

There is no specific time limit for anticipatory bail. Court can grant it up to completion of trial.

Can an accused file anticipatory bail application directly before High Court ? 

Although there is concurrent jurisdiction with Session Court and High Court to entertain anticipatory bail application, however, an accused has to approach the Session Court first.