Legal

How to File an Anticipatory Bail Application?

calendar25 Jan, 2024
timeReading Time: 8 Minutes
Anticipatory Bail Application

In criminal cases, anticipatory bail application is a comfort to many accused individuals. A person who anticipates being arrested for an offence for which bail is not required may request bail in advance under a law known as anticipatory bail. An individual may request anticipatory bail before being taken into custody by law enforcement. To apply for this kind of bail, the applicant must, however, meet certain requirements. The Sessions Court and the High Court can only grant this anticipatory bail application.

This blog provides a thorough explanation of anticipatory bail application, including its definition, conditions for anticipatory bail application, how to apply for one, and other crucial clauses relating to anticipatory bail application which are to be adhered.

What is an Anticipatory Bail?

The bail that is given to an accused person who is expecting to be arrested is known as anticipatory bail. If someone is accused of a criminal activity for which bail is not applicable, they can be granted bail before their arrest under as per Indian criminal law. An individual must meet certain requirements to be eligible for anticipatory bail. Section 438(1) of the Criminal Procedure Code governs anticipatory bail. The Law Commission of India proposed that this Section be included in the Criminal Procedure Code (CrPC). It is essential to note that an individual can only file an anticipatory bail application in cases where the offence is not eligible for bail.

It is an order to release someone on bail that is given before an arrest and an anticipatory bail application is used. The person is entitled to apply for an anticipatory bail application if he has reason to believe that he can be arrested for a crime in which he has been wrongfully accused. When an individual finds out they are subject to charges, they can make anticipatory bail application. It’s also vital to comprehend if the offence is subject to bail in such circumstances where a formal complaint has been filed. While bail is granted in the former case based on a right, it is granted in the second case subject to several conditions.

Who can apply for Anticipatory Bail?

An anticipatory bail can be obtained from a Sessions Court or High Court by any Indian citizen who is facing charges for either a cognizable or non-cognizable offence and anticipates being arrested. People typically file an anticipatory bail application when they think they may be jailed due to fabricated charges or false accusations against them in a case.

Details included in the Anticipatory Bail Application

When drafting an anticipatory bail application, take into consideration the following legal grounds based on the pertinent facts of the case:

  • Type and severity of accusation:
  • The applicant promises not to falsify any of the evidence.
  • The candidate is prepared to participate in the inquiry
  • No need for in-custody questioning.
  • By granting anticipatory bail under section 438 Cr. P.C., the applicant agrees to comply with all or any conditions that the court may impose.
  • Any potential recuperation.
  • A prima facie case founded on the complaint or FIR’s accusation
  • The petitioner promises not to obstruct the course of the inquiry.
  • Any potential criminal antecedents.
  • The accused’s reputation will be tarnished or humiliated if he is arrested.
  • There is little chance that the applicant will flee the nation.

Process for Anticipatory Bail Application

It is always important to stay in compliance with all the procedural steps laid down by the authorities. The process for anticipatory bail application is also given. The process for anticipatory bail application in India can be divided into two categories.

1. Anticipatory bail application in the case of an FIR not being filed.

  • The process for anticipatory bail application when FIR is not filed:
  • The concerned police officer will speak with the public prosecutor.
  • The prosecutor can suppose that there aren’t any grounds to grant anticipatory bail as no formal complaint has been filed.
  • If the judge grants this request, the lawyer will be requested to formally request the removal of the anticipatory bail.
  • If the police decide to arrest you or your family, the lawyer will next orally obtain a seven-day pre-arrest notice. It is possible the judge will accept this plea.
  • In accordance, an order will be passed. This is usually referred to as the “notice bail.”
  • You may apply to the High Court if the bail request is denied.
  • You have the option to petition the Supreme Court if the High Court likewise denies the bail.

2. Anticipatory bail application in the case of an FIR being filed.

The Investigating Officer will issue a notice of arrest once the FIR has been filed. Immediately as this notice has been received, the identical process outlined above should be followed to apply for anticipatory bail.

Instances where Anticipatory Bail can be Granted

When the mentioned instances are present, then the anticipatory bail application can be filed, and granted:

  • No other case is ongoing against the accused; No prima facie case has been established against the alleged accused.
  • The accused will refrain from interfering with the police’s investigation.
  • The accused will participate in the investigation and provide the investigating agency with complete cooperation;
  • The accused will not tamper with any evidence that the prosecution may use against him.
  • The accused’s reputation will be tarnished or humiliated if he is arrested.
  • There is little chance that the accused will flee the nation.

Among other things, the court may consider any of the following while granting the accused anticipatory bail:

  • The accused is not to be influenced by the recovery; there is no need for them to be questioned in custody.
  • The charge is not extremely serious in terms of its nature or seriousness.

Cancellation of Anticipatory Bail Application

The CrPC’s Section 439(2) addresses the revocation of anticipatory bail. Even if the Code of Criminal Procedure contains a specific provision, the court that has the authority to grant anticipatory bail also has the authority to rescind or recall the bail decision after considering there levant factors.

Anticipatory bail is a specific privilege granted to a person who is reasonably fearful of being arrested; it should not be exploited in any way. The court must be convinced that if the accused is not taken into custody, the goals of justice will be under mined before it can cancel the normal or anticipatory bail.

While the authority granted by Section 438 of the Code may be considered extraordinary, this does not support the notion that the authority should only be used in extraordinary circumstances. However, depending on the situation, the discretion under the Section must be used with caution and due diligence.

The court must be convinced that the applicant utilizing the provision has a reasonable perception that he would likely be arrested for an offence for which bail is not available before the power under sub-section (1) of Section 438 of the Code is used. It is not sufficient for the applicant to demonstrate that he has some unclear fear that someone may file an accusation against him, leading to the possibility of his detention, because mere “fear” is not belief.

The applicant’s suspicion that he might be arrested for an offence for which there is no possibility of bail must be supported by facts that the court can impartially review. For the court to determine whether the applicant’s beliefs are reasonable, certain events and facts must be revealed by him. This is a requirement for the court to be able to execute the authority granted by the Section.

In addition to the FIR’s merits, there are additional grounds that may be used in an anticipatory bail application. These grounds mostly consist of the following:

  • The arrest is made for covert purposes, such as humiliation and unwarranted harassment.
  • Irreversible harm to freedom and reputation.
  • In every other circumstance, bail prior to arrest is appropriate.
  • Surrender in person to the judge.
  • Police motivation about political considerations.

Conclusion

In India, obtaining bail can be a difficult and intimidating procedure. Nevertheless, navigating the procedure and obtaining bail is achievable with the correct legal advice and representation. Making educated decisions and raising one’s chances of obtaining bail is possible by being aware of the Indian bail process and the variables that influence the granting of bail. For legal support and expert guidance, get in touch with Corpbiz.

Frequently Asked Questions

1. If there is no FIR, can I get anticipatory bail?

It is possible to grant anticipatory bail before filing a formal complaint against a person. Before a complaint is filed against them, the person who is expecting to be arrested for an offence for which there is no possibility of the bond may apply for anticipatory bail in the Sessions Court or High Court.

2. What is the cost of anticipatory bail?

The expected bail amount can be anything from ₹25,000 to 30,000 depending on the circumstances. Generally speaking, the higher the bail, the more severe the matter. Furthermore, the cost of anticipatory bail is contingent upon the legal expertise and experience of the individual in question.

3. When is it possible to get anticipatory bail?

To get anticipatory bail, an Indian citizen facing charges of either a cognizable or non-cognizable offence and anticipating arrest may petition a Sessions Court or High Court. This kind of bail is typically given in exceptional situations where the applicant fears being falsely charged.

4. When is it possible to cancel anticipatory bail?

If a High Court or Sessions Court orders the police to arrest someone on bail, then the anticipated bail may be revoked. A person who anticipates prosecution for an offence for which there is no bail is granted this kind of bail. Only Sessions Courts or High Courts have the authority to issue anticipatory bail.

5. What does anticipatory bail mean?

A person may be granted bail under Indian criminal anticipatory bail- in advance of being taken into custody for an offence for which there is no possibility of bond. Section 438(1) of the Criminal Procedure Code governs anticipatory bail, which is only authorized in certain situations.

6. Which part of the Criminal Procedure Code has a provision regarding anticipatory bail?

Section 438(1) of the Criminal Procedure Code governs anticipatory bail. Only the Sessions Court or the High Court has the authority to give this kind of bail. In addition, the accused needs to meet certain requirements to be qualified for anticipatory bail.

7. What distinguishes anticipatory bail from regular bail?

Bail is given to someone who is being apprehended or is expecting to be arrested, while bail is issued after an arrest, which leads to the release from police custody. After filing an FIR, anticipatory bail may be granted, but only up until the point of arrest.

8. When can an application for anticipatory bail be submitted?

When someone is arrested for a crime they are accused of committing, they have the option to request anticipatory bail.

9. Can one apply for anticipatory bail anywhere?

The Supreme Court ruled today that in cases where the FIR is filed in a separate state rather than within the territory of a specific state, the Sessions Court or High Court would have the authority to award interim or transitory anticipatory bail.

10. How long does anticipatory bail last?

Regarding the second matter that was brought before this court, it is decided that the term of an anticipatory bail order does not generally expire when the accused is brought before the court or when the charges are filed; rather, it can last until the conclusion of the trial.

11. How should the court exercise its discretion in issuing anticipatory bail?

The court must exercise caution in its judgment, ensuring that the applicant’s legitimate anxiety is backed by evidence. The authority conferred by Section 438 shall be carried out based on the veracity of the FIR and other relevant considerations.

12. Who is eligible for anticipatory bail?

Any Indian person facing cognizable or non-cognizable charges may petition for anticipatory bail if they believe they will be arrested as a result of false accusations.

13. What are the key components of an anticipatory bail application?

An application should consider the seriousness of the charge, probable recovery, criminal history, reputation, no plan to run, and a commitment not to tamper with evidence.

14. In which cases can anticipatory bail be granted?

Anticipatory bail can be granted if there is no current case, no prima facie case established, no threat to the accused’s credibility, no flight risk, cooperating with the investigation, and a promise not to tamper with evidence.

15. What elements contribute to the cancellation of anticipatory bail

Withdrawal can take place if the court finds that the accused is abusing the privilege and the interests of justice are jeopardized. The court must establish that the applicant’s legitimate fear of arrest is based on facts.

16. Are there additional reasons for anticipatory bail?

Yes, other grounds include clandestine arrests, possible harm to liberty and reputation, circumstances requiring bail before arrest, surrendering in person, and political objectives by the police.

17. What considerations does the court evaluate while granting anticipatory bail?

When deciding on anticipatory bail, the court examines considerations such as the accused’s lack of influence, the charge’s non-serious character, and the absence of the requirement for in-custody interrogation.

18. What is the procedure for submitting an anticipatory bail application?

The process varies depending on whether a FIR has been filed. If not, it entails speaking with the public prosecutor, offering oral petitions, and securing notice bail. If a FIR is lodged, the applicant must apply for anticipatory bail after getting an arrest notice.

Read Our Article: Benefits Of Pursuing A Regular Bail Application

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