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Obtaining Anticipatory Bail in a Criminal Case: Lawyers Advice

 > Anticipatory Bail & Regular Bail  > Obtaining Anticipatory Bail in a Criminal Case: Lawyers Advice

Obtaining Anticipatory Bail in a Criminal Case: Lawyers Advice

Right to liberty is a fundamental right enshrined under Part III of the Indian Constitution. It is depicted under Article 21 of the Constitution of India which says that ‘no person shall be deprived of his life and personal liberty except according to the procedure established by law’. The right to liberty is a right in which every citizen of the country can avail without any bias and subject to certain restrictions. This right is even applicable to the accused or petitioner also. It is known as Bail in Criminal Law System. The term ‘Bail’ means the release of a person upon some security which is given in the form of Bail Bond. This article is all about anticipatory bail and prerequisites for obtaining the anticipatory bail from the respective Courts in India.

Anticipatory Bail
The term ‘anticipatory’ means the happening of something in which the person may think that it is going to happen shortly. Anticipatory bail is a type of bail in India in which the person who thinks that he may get arrested can approach the Court before arresting for seeking the anticipatory bail. The Court may upon deciding on the merits of the case deny or grant such a claim. It is different from ordinary bail and interim bail. In Unknown v. State of West Bengal and Others (C.R.M 10431 of 2018), the Petitioners availed anticipatory bail before the case has been filed by the police on 28th June, 2016. Again the Petitioners sought for anticipatory bail on 28th June, 2017 and the Court rejected their plea for anticipatory bail. Section 438 of the Criminal Procedure Code, 1973 stipulates that if a person feels that there is an apprehension of arrest by the police or any investigating agency, he or she can approach the High Court or Court of Sessions for seeking Anticipatory Bail. The need for having an Anticipatory Bail was first initiated by the 41st Law Commission Report in 1969. The reason for the inclusion of such a type of bail is to reduce false claims and accusations. The person can seek anticipatory bail under reasonable grounds only. Mere apprehension of arrest shall not amount to anticipatory bail and the Court shall not grant the same upon it. In Adri Dharan Das v. State of West Bengal (Appeal (Criminal) 326 of 2005), the Court said that the reason to believe must be based on reasonable grounds and not upon any whims and fancies of the applicant.

Essential Conditions for the Grant of Anticipatory Bail
A person while working in a small company or large multinationals may conduct some serious offences which may have severe consequences and it is not bailable. The High Court or Court of Sessions cannot upon without any conditions grant the bail under section 438 of Criminal Procedure Code, 1973. In Anil Kumar A v. State of Kerala (Bail Appeal No. 3334 of 2020), the Kerala High Court held that the custodial interrogation of the Applicant is not necessary in refusing pre-arrest bail and the Court gave the Applicant anticipatory bail in light of pandemic. Similarly, in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another (Special Leave Petition No. 7281-7282 of 2017), the Apex Court held that there is no time limit in granting anticipatory bail to the Petitioner. The conditions that a person need to adhere while getting anticipatory bail from the Court are-
• The person seeking anticipatory bail should be available for interrogation by the Police whenever required:-

One of the essential conditions of anticipatory bail is that whoever gets bail under section 438 of the Criminal Procedure Code, 1973 must appear before any investigation agency or police if requires his or her presence to investigate a crime. Granting an anticipatory bail doesn’t mean that the person is completely free from further investigations and interrogations. Section 438 (2) (i) presupposes this condition. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (Criminal Appeal No. 2271 of 2010), the Supreme Court held that custodial interrogation should be avoided in a case in which the accused has joined the investigation and the same is willing to cooperate without any likelihood of fleeing the accused from the trial. Hence, a person may be required to appear before the respective investigating body for the smooth functioning of criminal cases.
• The person seeking bail under section 438 is not entitled to influence any other person or tarnish the evidence collected by the investigation agency:-

Section 438 (2) (ii) of the Code, places a condition that the person who gets granted anticipatory bail cannot tarnish the evidence or influence any other person for the benefit of himself or herself. It is a necessary condition that a Court provides to the Petitioner while giving pre-arrest bail. If this condition is not met, then the person is not entitled to get anticipatory bail from the respective Court of jurisdiction.
• The person seeking anticipatory bail is not entitled to leave India without the prior permission from the Court:-

Under section 438 (2) (iii) of the Code, a person who has granted anticipatory bail cannot leave India for his or her business activities without the prior permission from the Court. This ensures that the person does not flee from justice. In the instant case of Bhadresh Sheth v. State of Gujarat and Another (Criminal Appeal No. 1134-1135 of 2015), the Apex Court further relied the principles laid down in the previous cases of similar kind and granted bail to the Appellant by stating that there is no possibility of the Appellant fleeing from justice and the Appellant had participated in the investigation proceedings.

The Anticipatory Bail is given based on the reasonable apprehension of arrest or by the feeling of getting arrested by the investigating agency. However, there is no anticipatory bail for bailable offences.
Authored By: Adv. Anant Sharma & Muhammad Aslah

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