Procedure for Anticipatory Bail (Apprehension of Arrest U/s 438 of CrPC , 1973)
Anticipatory bail can also be filed in the absence of any of the below documents.
- Certified copy of the complaint filed with the police
- Certified copy of the FIR
- Certified copy of the Private Complaint Report
- Certified copy of the Chargesheet
Procedure : Anticipatory bail is dealt with under Section 438 of the Code of Criminal Procedure, 1973. Anticipatory bail can only be applied for non-bailable offences. The list of all the offences under the Indian Penal Code, classified as bailable and non-bailable is available here http://ecourts.gov.in/sites/default/files/classification.pdf
Who can file for an anticipatory bail?
Any person who suspects that he/she may be arrested by the Police for a non bailable offence can file a Petition seeking anticipatory bail.
When can you apply for an anticipatory bail?
A person may apply for an anticipatory bail when he/she apprehends/suspects that:
a) A complaint regrading a non bailable offence will soon be filed before the Police.
b) A complaint has already be filed before the Police
c) An FIR has been registered
d) A PCR has been filed and investigation is ordered by the Magistrate
e) A chargesheet has been filed
Which Court should be approached to file for an anticipatory bail?
Any person apprehending arrest for a non bailable offence may either approach the Sessions Court or the High Court to seek anticipatory bail.
What is an Interim Bail?
An Interim Bail is a temporary bail that is granted by Court, before the Petition on anticipatory bail is heard by the Court. This means that, the person will not be arrested until the Court passes orders on the Anticipatory bail petition. Interim Bail is granted in the beginning when the Petition for anticipatory bail is filed and shall usually last until the final orders on anticipatory bail is either granted or rejected. The life of an interim bail is only until an Order granting or rejecting anticipatory bail is passed by the Court.
Procedure to apply for an anticipatory bail
Petition for anticipatory bail – A Petition for anticipatory bail is filed. Please note that, along with a petition for anticipatory bail, an application for Interim Bail may also be filed. However, application for an interim bail is optional. If an application for Interim Bail is filed, then the Advocate argues on the interim bail application on the day when the application if filed.
Orders on Interim Bail – Once the Court is hears the argument on interim bail, the court passes an order either granting and interim bail or rejecting the application denying interim bail. After orders on interim bail is passed, notice is issued to the Public Prosecutor to appear in the case.
Objections to the Petition – Upon receiving notice, the Public Prosecutor is granted sometime by Court to file his objections to the Anticipatory bail Petition
Hearing on the Anticipatory Bail Petition – Once the Public Prosecutor files his objection to the anticipatory bail Petition, the Advocate for the Petitioner will argue seeking anticipatory bail and the Public Prosecutor shall reply to the arguments
Orders on anticipatory Bail – After hearing both sides, the Court passes orders either granting anticipatory bail or rejecting the same. If anticipatory bail is granted, the Court shall impose certain conditions that have to be adhered to by the Petitioner/Accused.
Where to file an appeal if anticipatory bail is rejected?
If the bail application is rejected in the Sessions Court, the order of dismissal may be challenged before the High Court and thereafter the Supreme Court.
What is to be done once anticipatory bail is granted
Once anticipatory bail is granted by Court, the person on bail/Accused may not worry about being arrested. If and when the Police calls/contacts the person on bail or the Accused, as the case may be, for any investigation, the Accused may produce the Order granting anticipatory bail and thereafter the Police shall execute a bail bond (either a personal bond or a surety bond depending on what is ordered by the Court while granting anticipatory bail) which shall be signed by the accused. Upon completion of the required formalities, the procedure for bail stands completed.
What is a bail bond?
Its a bond, wherein the Accused or any third party on behalf of the Accused, agrees to pay a certain amount (which is decided by the Court) if the Accused does not adhere to any of the conditions ordered by the Court while granting bail. There are different kinds of bail bond; personal surety bond, third party surety bond and cash surety. In case of personal bond or third party surety bond, the Accused or the third party shall sign and agree to pay a certain amount (decided by Court) in case the Accused violates any of the conditions ordered by Court when released on bail. However, a cash surety is where the Court orders the Accused to deposit certain amount in Court in order to be released on bail.
Can anticipatory bail be cancelled?
If it is brought to the notice of the court, either by the prosecution, through the Police or the Complainant or the witness, depending on the circumstances, that the person who has been granted anticipatory bail has not adhered to the conditions ordered by the Court, then the court which granted anticipatory bail has the power to cancel the bail and instruct the Police to arrest the person.
Procedure followed for cancelling anticipatory bail
Application for Cancellation – The Public Prosecutor shall file an application/petition seeking cancellation of anticipatory bail in the same Court which granted anticipatory bail
Notice to the Accused on bail – A notice will be sent to the Accused who was granted anticipatory bail
Appearance through an Advocate – The Advocate appointed shall appear on behalf of the Accused and file his Vakalath and ask for a copy of the Application/Petition for Cancellation and seek time to file his objection
Objections – The Advocate for Accused shall file his Objections
Hearing on the Application/Petition – The Public Prosecutor shall argue by stating reasons to cancel the anticipatory bail and the Advocate for the Accused shall reply
Orders on the Application/Petition – The Court, upon hearing both the Counsels, shall either reject the Application for Cancellation or allow the same. In case the application is rejected, then the order granting anticipatory bail will hold good and if the application is allowed, then the anticipatory bail shall stand cancelled and the Police shall have a right to arrest
Important Points
In the absence of any of the documents mentioned above, petition for anticipatory bail can still be availed. However, the only precondition is that the Petitioner or any member of his/her family or a friend has to swear to an affidavit with respect to the apprehension of arrest. In case the affidavit is sworn by a family member or a friend due to the Petitioner’s absence, the anticipatory bail petition should be filed in the name of the person seeking bail, i.e., the Petitioner.
It is advisable to file the Petition before the lowest court, which is the Sessions Court, since there shall be scope to appeal before the High Court and thereafter the Supreme Court, in case the bail gets rejected.
If the Court directs the person seeking anticipatory bail to be present in Court, then the Petitioner will have to keep himself present, otherwise his/her presence in Court may not be required.
If an anticipatory bail is granted, the Police can still go ahead and investigate such a person. They do not lose their powers to investigate.
The person who has been granted anticipatory bail should fully co-operate with the Police and make themselves available as and when required by the Police and Court.
In case the bail is rejected, the officer in-charge of the Police Station can arrest the person without warrant.
The anticipatory bail granted by the Court shall continue till the end of the case, unless cancelled for the above stated reasons.
There is no need to apply for a regular bail before the Magistrate when an anticipatory bail has already been granted.
In case the anticipatory bail is cancelled, an appeal can be filed before the Appellate Court challenging the said Order.
In case of cash surety, if the Accused violates any of the bail conditions, then the cash deposited by the Accused will be forfeited.
On completion of the trail, the Accused can collect the cash deposited as cash surety from Court, irrespective of whether he is convicted or acquitted.
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