Introduction: What is Anticipatory Bail?
Anticipatory bail, as the name suggests, is bail granted to a person in anticipation and apprehending arrest. The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in cases of cognizable offenses. It is a relief that was not originally a part of the Code of Criminal Procedure, 1973 (“the Act”). It was added later on when the need emerged. Depending on the gravity of the allegations, a person may be able to avoid arrest altogether. But is anticipatory bail granted in every case? No, the Hon’ble Supreme Court has stated conditions in which the Anticipatory Bail will not be given which are explained in subsequent paragraphs.
An application under Section 438 Cr.P.C. 1973
On apprehension of arrest, an aggrieved person can approach the Sessions Court and file an application under Section 438 of the Act requesting for a grant of anticipatory bail.
It is pertinent to mention that application under Section 438 of the Act cannot be heard by a Magistrate and has to be filed in the Sessions Court and if the application is rejected by the Sessions Court, the aggrieved person can approach the Hon’ble High Court under Section 438 of the Act. A certified copy of FIR is compulsory to be annexed with the application. Suppose the Learned Court before which the application is submitted and upon bare perusal of the case diary submitted by the concerned police station believes that a concocted FIR is registered against the applicant just to harm his reputation. In that case, anticipatory bail will be granted with relevant conditions.
Conditions for Anticipatory Bail (Section 438 (2) of the Act)
The conditions mentioned in that sub-section are only illustrative and the court may impose other conditions, it thinks fit, with a view to striking a balance between the individual’s rights to personal freedom and the investigational rights of the police. The conditions imposed while granting such bail are –
- The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.
- The applicant should not leave the country without the previous permission of the court.
- The applicant should submit a local residential address, native address and contact number to the concerned police station.
- The applicant should not make any inducement, threat, promise etc. to any person acquainted with the facts of the case.
Validity of Anticipatory Bail
Anticipatory bail will be valid till the conclusion of the trial. In the case of “Sushila Aggarwal vs. State (NCT of Delhi)” on 29 January 2020, the Hon’ble Supreme Court of India cleared the uncertainty on the validation of anticipatory bail by stating that the police cannot arrest a person who has been granted anticipatory bail by the concerned court until the completion of the trial.
Condition for non-granting of Anticipatory Bail
Initiation of proceedings under Section 82 (Proclamation for person absconding) & 83 (Attaching of property of person absconding) of the Act is a crucial condition under which an anticipatory bail will not be granted to a person who has an apprehension of arrest and this is clarified by the Hon’ble Supreme Court of India in the case of “Prem Shankar Prasad vs. The State of Bihar” on 21 October 2021. The brief facts are:
- An FIR came to be filed for the offenses punishable under Sections 406, 407, 468, and 506 of the Indian Penal Code, 1860.
- A warrant of the arrest came to be issued by the learned Chief Judicial Magistrate on 19.12.2018 at the request of the police authorities as they were not able to find the accused. After the issuance of the arrest warrant, it appeared that the accused is absconding and concealing himself to avoid service of a warrant of arrest. Thereafter learned Chief Judicial Magistrate issued a proclamation against the accused under Section 82 of the Act. Only thereafter and issuance of proclamation under Section 82 of the Act, the accused filed an anticipatory bail application before the learned Trial Court. But the learned Trial Court dismissed the said anticipatory bail application and rejected the prayer for anticipatory bail on merits as well as on the ground that as the accused is absconding and even the proceedings under Section 82 & 83 of the Act have been issued, the accused is not entitled to the anticipatory bail.
Subsequently, the accused approached the High Court and despite the fact that it was specifically pointed to the High Court that since the process of proclamation under Section 82 & 83 of the Act have been issued, the accused should not be allowed the privilege of anticipatory bail, ignoring the aforesaid relevant aspect, the High Court had allowed the anticipatory bail to the accused.
Aggrieved and dissatisfied with the impugned judgment and order passed by the High Court granting anticipatory bail, the State of Bihar approached the Hon’ble Supreme Court.
The Hon’ble Supreme Court taking into consideration the facts of the case and relevant case laws decided the case against the accused stating that in “Lavesh vs. State (NCT of Delhi) [(2012)8 SCC 730]”, the accused was not available for interrogation and investigation and was declared as ‘absconder’. Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. It was reiterated that when a person against whom a warrant had been issued is absconding or concealing himself in order to avoid execution of the warrant and is declared as a proclaimed offender in terms of Section 82 of the Act he is not entitled to the relief of anticipatory bail.
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Act, he is not entitled to the relief of anticipatory bail.
Anticipatory bail is granted under Section 438 of the Act with relevant conditions but if a person against whom there is an apprehension of arrest and has absconded and declared as a proclaimed offender under Section 82 of the Act and the concerned Court has also ordered under Section 83 of the Act for attachment of the property of the accused, then, in this case, the applicant will not be granted any relief of anticipatory bail but has to present himself before the concerned court for trial
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