Anticipatory Bail
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Under
India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...
n
criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
, there is a provision for anticipatory bail under Section 438(1) of the
Criminal Procedure Code Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
. Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek
bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when ...
in anticipation of an
arrest An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be question ...
on
accusation An accusation is a statement by one person asserting that another person or entity has done something improper. The person who makes the accusation is an accuser, while the subject against whom it is made is the accused. Whether a statement is i ...
of having committed a non-bailable offence. On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this). Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. It is only issued by the Sessions Court and High Court.


Eligibility

When any person apprehends that there is a move to get him arrested on false or trumped-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(1) of the code of Criminal Procedure for grant of bail in the event of his arrest for a cognizable or non-cognizable offence, and the court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Anticipatory bail can be granted by
Sessions Court A Sessions Court or even known as the Court of Sessions Judge is a court of law which exists in several Commonwealth countries. A Court of Session is the highest criminal court in a district and the court of first instance for trying serious of ...
and High Court.


Conditions

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. 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. Supreme Court while dealing the case of Sidhram Mhetre, held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.(2011)1 SCC 694


Qualification

The applicant must show by disclosing special facts and events that he or she has reason to believe, that he or she 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 cancelled. 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.


See also

*
Bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when ...
*
Arraignment Arraignment is a formal reading of a criminal charging document in the presence of the defendant, to inform them of the criminal charges against them. In response to arraignment, in some jurisdictions, the accused is expected to enter a plea; i ...
*
Preliminary hearing In common law jurisdictions, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether the ...


References

{{Criminal procedure (investigation), state=expanded Indian criminal law Fair trial rights Criminal Procedure Code Sections Bail