Usually people misinterpret the word anticipatory bail with the Normal bail provisions as they mostly focus on word bail only.
Today we will provide the brief information about Anticipatory bail and cover topics like what exactly is anticipatory bail, when it is obtained and how it is different from the Normal bail.
Now, let’s assess the word ANTICIPATORY to in order to understand Anticipatory bail. The word Anticipatory is basically taken from the word “ANTICIPATION” which means “expectation or prediction” of what may happen in future. Therefore, Anticipatory bail in a layman language means a person who obtains a bail before he/she is actually arrested on the anticipation or expectation that in near future he/she can be arrested.
From the above meaning it must be clear in the mind that the anticipatory bail is obtained before arrest is been made and normal bail is obtained after the arrest is made or when the person is in custody as once the person is arrested his right to obtain the anticipatory bail is finished.
Further, it is to be noted that Bail only provides the immunity to a person from the police custody and not arrest. As person will be arrested by the police officer but he cannot be kept in custody or detained by them, they have to release person after questioning him about the case.
Now let’s move forward to the provision of the Anticipatory Bail:
It is explained under the chapter 33 section 438 of the Crpc (Code of Criminal Procedure, 1973).
Section 438- DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST (Anticipatory Bail)
We will explain in this section in an easy language in question and answer form for the better understanding.
Who can apply for the Anticipatory bail?
Anticipatory Bail can be applied by any person who has reason to believe that he may be arrested on accusation for committing the Non- Bailable offence.
In which court application should be filed?
Any such person (specified above) can file an application for Anticipatory bail only in the High court or Court of Session.
What is the Procedure after filing an Application for Anticipatory bail?
After an Application for anticipatory bail is filed in the appropriate court, the court after taking various factors into consideration like:
• Nature and gravity of accusation • Previous record of the person (whether he was ever convicted by court) • Can he flee from justice after receiving the bail etc.
In view of the above the court May either:
Reject the application or pass an interim order for the grant of the bail.
If the application is rejected by the court then it is open to the police officer to arrest such person as on the day of final hearing of the Anticipatory bail. It is obligatory for the person seeking the bail to be present.
And if the interim order is been passed by the court in favour of the applicant, it is required to sent a notice to the public prosecutor and superintendent of police to give them the opportunity of been heard that why such person shall not be granted bail.
And if on the final day of hearing is the bail is granted by the Court it can impose certain conditions on such person like: not to leave India, not to threat or induce any person acquainted with the case etc. and in case if these conditions are breached by such person his/her bail will stand cancelled.
Important Note: Before 2019, Anticipatory Bail provision was not followed in Uttar Pradesh instead of this provision, the state of Uttar Pradesh had same day bail Provision but in 2019 the state government of Uttar Pradesh also inserted anticipatory bail provision.