This article is authored by Kanika Dayma and edited by Mr. Anoop Prakash Awasthi, AOR and Adv. Parthvi Ahuja.
Section 438 of the Code of Criminal Procedure explains the concept of Anticipatory Bail. When any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offense, then he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail. Few factors to be taken into consideration by the court while granting the anticipatory bail, are as follows:-
1. the nature and gravity of the accusation.
2. the antecedents of the applicant including the fact as to whether he
has previously undergone imprisonment on conviction by a Court in
respect of any cognizable offense.
3. the possibility of the applicant to flee from justice.
4. where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for the grant of
anticipatory bail.
When a person has a reason to believe that there is a chance 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 file for the anticipatory bail to the court.
Certain conditions has been laid down by the High Court or the Court of session while granting the anticipatory bail are :-
- The person shall make himself available for interrogation by the police officer as and when required;
- 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;
- The person shall not leave India without the previous permission of the court.
The popular case regarding anticipatory bail is Sushila Aggarwal & Ors. vs. State (NCT of Delhi) where the Supreme Court held that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should insure in favor of the accused without any restriction on time. It also held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
