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Meaning of Anticipatory Bail under Criminal Procedure Code

Consider a situation in which your neighbor, let’s say, for instance, Alex once struck a man in the head with an iron rod after the latter’s actions left Alex’s car with an irreparable dent. In this case, Alex was charged under Section 326 of the Indian Penal Code after he voluntarily caused grievous injury to the man. Since Alex is aware that he would soon be caught for his actions and doesn’t want to spend time in jail, he searches for a way to obtain a release before being imprisoned. As a response, the idea of anticipatory bail is established.

What is Anticipatory Bail?

A circumstance that will “likely” occur soon is what it means to “anticipate” or “predict.” An anticipatory bail is a decision to free someone on bail (releasing an accused or prisoner) before their actual arrest occurs in cases where the freed person has reasonable grounds to assume that they will likely be detained. Sec 438 (1) of the Criminal Procedure Code sums up the definition clearly “ When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offense, 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.” 

Requirement for Anticipatory bail

Therefore the two requirements for being eligible for applying for anticipatory bail are-

  1. Likelihood of arrest based on the accusation of committing a non-bailable offense
  2. The application shall be given to the High court or Sessions Court Only

Anticipatory Bail and Non-Bailable Offenses

To truly understand anticipatory bail, it is also necessary to understand what non-bailable offenses are. These are heinous offenses for which the likelihood of obtaining bail is extremely slim given the heinousness of the offense, and it is largely up to the court’s discretion whether or not to grant bail. Non-bailable offenses examples include:

  1. Murder ( Sec 302 IPC)
  2. Rape ( Sec 376 )
  3. Attempt to murder ( Sec 307)
  4. Voluntarily causing grievous hurt ( Sec 326 ) and;
  5. Kidnapping ( Sec 363 ) 

 A person is only eligible for anticipatory bail once a First Information Report (FIR) has been filed against them, which allows them to display the court’s bail order when they are about to be arrested on a warrant and escape police custody.

Conditions while Granting Anticipatory Bail  

Following Section 438, the High Court or Sessions Court may impose conditions on anticipatory bail that they feel appropriate and that must be adhered to by the individual seeking relief. The circumstances are summarized below: 

  • The said person shall be available at all times for police interrogation whenever required 
  • The said person neither directly/indirectly makes any kind of threat nor promise to a third person who knows the fact of the case to discourage them to release the facts to the Court/police officer. 
  • The said person is not permitted to leave the Indian continent unless he has obtained prior permission from the Court.

Finally, an anticipatory bail lasts for the time duration of 30 days, i.e. six weeks, the duration of which can be extended by the court’s discretion keeping in mind the facts and circumstances of the case. 

Written by Avantika Mandar Chavan

Her name is Avantika Mandar Chavan a 2nd year law student currently pursuing her BBA LLB from Jindal Global Law school. She has a keen interest in various laws particularly ones concerning Mediation & Arbitration and IPR. She also likes to keep updated with current affairs and news related to  International organizations.

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