How to Get Anticipatory Bail in India?

Among all other fundamental rights delineated in the Constitution of India, Article 21 defines the significance of right to life and the right to liberty of every citizen.  Certain other freedom rights are also there in the constitution (Article 19-22) which supports the idea of anticipatory bail in a criminal offense. Different requirements or obligations are there to obtain the anticipatory bail/pre-arrest bail/notice bail. Here you can get to know how to get anticipatory bail in India under Section 438 of CrPC.

What is Anticipatory Bail?

An accused is not presumed to be guilty until the time it is proved in the court. The constitution entitles every citizen to enjoy their right to life and liberty but that doesn’t make anticipatory bail a fundamental right.
The anticipatory bail application is filed to apprehend the arrest for a non-bailable offense when the FIR has been filed or is likely to be filed due to some bogus, trumped-up, enmity, or some other reasons. The application can be filed in the session court. If the application gets rejected in session court, the accused can then approach the High Court, and further, the appeal can be moved to the Supreme Court when rejected by the High Court.

Conditions for Anticipatory Bail under Section 438 of CrPC

Section 438 of the Criminal Procedure Code deals with the matters related to granting of anticipatory bail. The court will grant the bail when the facts and reasons presented in the anticipatory bail fit right. The following are the major conditions on which the court will check out during granting an anticipatory bail order.

• The accused must be available for interrogation by the investigation officer and court whenever required.
• A condition where the accused shall not perform the acts like making inducement, threat, or promise to any person related to the case (acquainted with some facts or is a witness) to deter that person from disclosing those known facts in front of investigation officer or court, neither directly nor indirectly.
• The accused shall not leave the country without court permission.

Other Factors Considered During Anticipatory Bail Matter

The gravity of the offense – The extremity or seriousness of the offense will be taken into account by the court to grant or cancel the anticipatory bail.
Antecedents of the Applicant – Previous record of the accused one that whether the person is having any criminal and imprisonment record for a cognizable offense.
Bailable and Non-bailable offense.

The validity of Anticipatory Bail in India

Usually, the court grants an anticipatory bail for 30 days. After that, the accused can file an application for the regular bail with the help of an experienced criminal lawyer. Besides that, if the court has not specified the time period for the validity of anticipatory bail, it remains active until the case has been disposed of.

Section 436 of CrPC

Any person, other than the accused person for a non-bailable offense, if detained or arrested without any warrant by the officer or is brought before court will be released on bail as a matter of right.

Section 437 of CrPC

 Section 437 of CrPC demarcates certain guidelines or criteria which will be considered by the court for the judicial discretion related to grant or refusal of bail. This criterion may include the nature of the offense, chances of conviction, prior criminal record, etc.

Cancellation of Anticipatory Bail under Section 439 CrPC

In order to avoid the abuse of anticipatory bail, the court can also reject the application after reviewing the application and appropriateness of the facts. So in addition to having the power to grant anticipatory bail, the court can also refuse.