INTRODUCTION

Bail is money or some form of property that is deposited or pledged to a court, in order to secure the release from jail of a suspect who has been arrested, with the understanding that the suspect will return for their trial and required court appearances.

In case of “Balchand Jain V. State of M.P.,” the court has defined anticipatory bail as ‘bail in anticipation of arrest’. Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.

The Supreme Court in the case of “Gurbaksh Singh Sibbia v The State of Punjab” held that under sub-section (1) of Section 438 of the Code, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere ‘fear’ is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.

PROVISION RELATING TO ANTICIPATORY BAIL UNDER CRIMINAL CODE OF PROCEDURE

Under Section 438 of the Code of Criminal Procedure, 1973 any person who has a reason to believe that he may be arrested on accusation of having  committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into consideration the following factors, namely:-

  1. The nature and gravity of the accusation.
  2. The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
  3. The possibility of the applicant to flee from justice.
  4. Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

CONDITIONS FOR OBTAINING THE ANTICIPATORY BAIL

The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including:

  1. A condition that the person shall make himself available for interrogation by the police officer as and when required;
  2. A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
  3. A condition that the person shall not leave India without the previous permission of the court.