Anticipatory Bail

Bail is the temporary release of a person held under legal custody for matters not decided by the Court, by providing security for undertaking a promise to appear in the Court as and when directed. According to the ordinary law, the bail is provided after the arrest but anticipatory bail is pre arrest bail which is taken prior to arrest. Anticipatory bail is defined under Section 438 of Criminal Procedure Code.

Section 438 of the CrPC lays down the provisions on anticipatory Bail:

  1. Sec. 438(1): When any person anticipates that he/she may get arrested on an accusation of having committed a non-bailable offence, s/he may apply to the High Court or the Court of Session for a direction under this Section. The Court may direct (if it thinks fit) that in the event of such arrests, he/she shall be released on Bail even before an arrest is made without subjecting him/her to further restraints.
  2. Sec. 438(2): When the High Court or the Session Court makes a direction under Sec. 438(1), in light of facts of the case the Court might issue conditions which need to be followed which may be: 
  • The accused shall not leave the country and travel abroad without the prior permission of the Court.
  • If the Court rejects the anticipatory Bail to a person, they can be arrested by the police without the issue of a warrant.
  • The accused will have to make himself available for interrogation by a police officer whenever directed by the same.
  • Person shall not make any inducement, interference, threat or promise to any person acquainted with the facts of the case through any means of communication either directly or indirectly to deter him/her from imparting facts to the authorities.

Both session court and high court has power to grant anticipatory bail but in accordance with the procedure first the application of anticipatory bail must file in Session Court and if its rejects by the court than the accused can challenge it in High Court. But to file for anticipatory bail there should be ‘reasonable apprehension of arrest’- The pre arrest bail is granted by the court only when the person satisfies the court that he is falsely involved in the case. Otherwise the application for anticipatory bail will be irrevocably rejected by the court.

 Pre arrest bail is only granted in the matters of non bailable offences but the application must be given before the arrest of the accused. There is no provision on the limit of anticipatory bail but the general limit is throughout the trial or proceedings. Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. A Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts. A High Court or Court of Session may direct that any person who has been released on Bail be arrested, and brought under custody after filing of an application by the complainant or the prosecution.