ANTICIPATORY BAIL

Anticipatory bail is a type of bail that is granted to a person in anticipation and apprehending
arrest. The main purpose for granting such a bail is to ensure that no person is confined in any
way until and unless he/she is proven guilty. Section 438 of CrPC deals with Anticipatory
bail. The provision allows a person to seek bail in anticipation of his/her arrest in a non-
bailable offence. The application of Anticipatory Bail can be filed in HC or Sessions Court
and the respective court shall, after being satisfied, direct that in the event of the arrest, he/she
shall be released on bail.
When a person has reason to believe that he may be arrested on the accusation of committing
a non-bailable offence then he can move to High Court or the Court of Session u/s 438 of
CrPC for anticipatory bail. There are certain factors that the HC or the Sessions Court might
consider while granting anticipatory bail, such as:
 Nature and gravity of accusation,
 The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a court in respect of any cognizable
offence,
 The possibility of the applicant to flee from justice,
 Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail.
When the court grants anticipatory bail, what it does is to make an order that in the event of
arrest, a person shall be released on bail. Manifestly there is no question of release on bail
unless a person is arrested, and therefore, it is only on arrest that the order granting
anticipatory bail becomes operative. Filing for FIR is not a pre-requisite for exercising one’s
right for AB. AB can be granted even after the FIR is lodged, so long as the applicant of AB
is not arrested. Blanket order of AB should not be passed.
The distinction between an ordinary bail and an order of anticipatory bail is that whereas the
former is granted after arrest and, therefore, means release from the custody of the police, the
latter is granted in anticipation of arrest and is there effective at the very moment of arrest.

CONDITIONS FOR GRANTING ANTICIPATORY BAIL:

 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 permissions of the
court.
 The applicant should submit 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.
CASE LAWS:
1. Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) - The constitutional bench of the
Hon’ble Supreme Court of India where it was held that the protection granted to a
person u/s 438 CrPC should not be limited to a fixed period unless a special case is
made out. The Hon’ble Court further expounded that “The life or duration of an
anticipatory bail order does not end normally at the time and stage when the accused
is summoned by the court, or when charges are framed, but can continue till the end
of the trial”.
2. The Public Prosecutor, High Court of A.P.Vs. Kumar Murukurthy1 - The HC of AP
had granted the accused AB since the accused had stated his parents who live in the
USA are ailing and that he had to visit them to secure their health. The HC after
hearing both the sides, granted the AB with certain conditions like bond and sureties.
Based on the arguments of the Add.PP.the court increased the Bond amount from
RS.50,000 to Rs. 2 Crores. Conditional AB was granted to the accused for an offence
under Section 420 and 4932 of IPC.
3. Prashant Singh Rajput Vs. The State of Madhya Pradesh and Ors3 - The SC in this
case had set aside the order of the HC and allowed the appeal, stating the HC had
erred in its decision to allow a petition for AB without taking into consideration the
gravity of the crime ( Charges are 302 and 323 r/w 34 of IPC). The victim was shot
dead by the accused, but the same was disclosed during the investigation and because
of this the HC allowed the petition of AB. The SC held that due to grave nature of the
offence, AB cannot be allowed. Order set aside.

1
Criminal Petition Nos. 2781, 3171 and 3354 of 2002 Decided On: 29.08.2002
2
Enticing or taking away or detaining with criminal intent a married woman
3
Criminal Appeal No. 1202 of 2021 (Arising out of SLP (Crl.) No. 5786 of 2021) and Criminal Appeal No.
1203 of 2021 (Arising out of SLP (Crl.) No. 5788 of 2021