Updated on: September 8th, 2020 5:40 PM

How to Get Anticipatory Bail

Anticipatory bail can be obtained by a person who anticipates arrest. Hence, anticipatory bail is a direction to release a person on bail, even before the person is arrested. Anticipatory bail is applied for under Section 438 of the Criminal Procedure Code. In this article, we look at the procedure for obtaining anticipatory bail in India.

Reason for Obtaining Anticipatory Bail

Arrests are mainly made after a criminal complaint to secure the appearance of the accused at the time of trial and to ensure that, if guilty, he/she is available for sentencing. However, if the presence of the accused can be reasonably guaranteed during the period of trial and sentencing, then it would be unjust and unfair to deprive the accused of his/her liberty during the trial period.  Hence, if the courts believe that it would be unjust and unfair to arrest a person during the trial, anticipatory bail is granted.

Section 438 of the Criminal Procedure Code

438. Direction for grant of bail to person apprehending arrest:

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
2. When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:
   1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
   2. 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 to dissuade him from disclosing such facts to the Court or any police officer;
   3. a condition that the person shall not leave India without the previous permission of the Court;
   4. such other conditions as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.
3. If such person is after that arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail. If a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1).

Filing Anticipatory Bail Application

It is advisable to engage a criminal lawyer once a criminal complaint or FIR has been lodged. Once engaged, a suitable course of action including the application for pre-arrest notice, notice bail or anticipatory bail can be decided upon. Once decided, the Lawyer would draft an anticipatory bail mentioning the reasons for the bail application and your version of the facts surrounding the matter. Application for bail is then made at an appropriate Sessions Court. When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case as fit, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made in the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court.

Anticipatory Bail Conditions

While granting anticipatory bail, the Court can impose one or more of the following conditions based on the facts of the particular case:

• Be 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 to dissuade him from disclosing such facts to the court or any police officer;
• The person shall not leave India without the previous permission of the court.