Law on Anticipatory Bail in India:-

Anticipatory Bail is a pre-arrest or advance bail in anticipation of arrest, prime objective of Anticipatory Bail is to get the protection from arrest in Non-Bailable Offences.

However, to get Anticipatory Bail, the person accused of an offence must satisfy the court that there is an reasonable apprehension of being arrested in a non-bailable offence, and if the protection is not granted, he may be arrested for a non-bailable offence. (Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980).

As per section 438 of The Code of Criminal Procedure Code, 1978, Anticipatory Bail can be filed before the Court of Session or the Hon’ble High Court, but as a matter of practice it is normally filed before the Sessions Court.

Thought the courts are not bound to grant Anticipatory Bail, but generally the courts while exercising their discretion to grant the protection from arrest, courts are guided by the following factors:-

• Nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made
• Antecedents of the applicant- previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
• Possibility of the applicant fleeing from justice;
• Accused’s likelihood to repeat similar or other offences;
• Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
  Impact of grant of anticipatory bail on the accused
• Balance between two factors- no prejudice to the free, fair and full investigation and prevention of harassment, humiliation and unjustified detention of the accused
• Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
• Frivolity in prosecution and the element of genuineness.
• Available material against the accused and exact role

Period for which Anticipatory Bail can be Granted:-

Protection of Anticipatory Bail should not invariably be limited to a fixed period unless special case is made out (Sushila Aggarwal vs State (Nct Of Delhi) on 29 January, 2020)

Kapil Chandna Advocate

Practicing at Supreme Court of India

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