What is Anticipatory Bail in India?

As the name suggests, anticipatory bail is the process of securing bail anticipating immediate or future arrest. When a person anticipates that he will face arrest on accusation by another person or party, he can apply to a court seeking orders to be released on bail at the time of arrest.

The provision for anticipatory bail was introduced in 1973 when it was found that people with influence got their opponents arrested, when they were surely to be exonerated of accusations later.  This would save the persons applying for bail from the ignominy of custody.

Anticipatory bail (AB) can be granted by higher courts like high courts and session courts. A person can apply for AB in Chandigarh and rest of India even if FIR has been filed, but the person has not been arrested.

According to section 438 (1) of the Criminal Procedure Code, there is a condition for granting AB. The applicant must show that he has ‘reason to believe’ that he may be arrested for a non-bailable offense. The condition-‘reason to believe’ indicates that the belief of applicant fearing arrest must be based on reasonable grounds.

Filing of an FIR is not a precondition. One can sense imminence of arrest even before an FIR has been filed for applying for AB. But AB can be granted even after FIR has been filed and arrest has not been made. After arrest, the accused must make use of another provision-S. 437 or S. 439 of the code if he wants to be bailed out from the accusations for which he has been arrested.

Four issues relevant for applying for AB are as follows:

·         The gravity and nature of accusation as anticipated by the applicant.

·         The history of the applicant whether he has been formerly convicted of any cognizable offense.

·         The intent of the accuser to malign or ruin the reputation of the accused by getting him/her arrested.

·         The possibility that if granted AB, the accused will flee from justice.

When does an accused apply for AB?  This is when an accused senses a move by accusers to file trumped up charges against him or he fears some enemies might be trying to set him up for a crime he did not commit. He has the right to approach the session court or high court under section 438 of the CPC.  The court shall grant him bail in the event of his arrest.

The court shall however impose certain conditions in the light of certain facts including:

·         Condition that the person will make himself available at once when the police wish to interrogate him whenever required.

·         A condition that he will not tamper with evidence of the case. The accused should not indirectly or directly make threats, promise or inducement to any individuals familiar with details of the case to prevent him from disclosing such facts to any police officer or the court.

·         A condition that the person will not leave India without permission from the court.

These are some of the aspects of AB in India, including in Chandigarh. Consult lawyers for anticipatory bail for being properly equipped to deal with potential arrest.