The relief of Anticipatory Bail is a novel innovation of the Criminal Procedure Code, 1973. Nowhere in the Code of Criminal Procedure, 1973 the term Anticipatory Bail is defined. But the words “Anticipatory Bail” coined by the judiciary particularly the Supreme Court of India.
Section: 438 of Cr.P.C provides for Anticipatory Bail.
Direction for grant of bail to person apprehending arrest
- Where any person has reason to believe that he may be arrested on the accusation of having committed a non-billable offence, he may apply to the High Court or of the court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely the nature and gravity of the accusation.
- 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 offense.
- The possibility of the applicant to flee from justice; and
- 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:
PROVIDED that, where the High Court or, as the case may be, the Court of session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to giving the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]
- When the High Court or the Court of the session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including a condition that the person shall make himself available for interrogation by a police officer as and when required.
- A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer.
- A condition that the person shall not leave India without the previous permission of the Court.
- Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
- If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; in the first instance against that person, he shall issue a billable warrant in conformity with the direction of the court under sub-section (1).
The procedure for anticipatory bail is an important provision since it relates to the protection of the personal liberty of an individual.
The Constitution Bench of the Honourable Supreme Court of India delivered a landmark verdict and laid down guidelines for the procedure of considering the relief of anticipatory bail in GURBAKSH SINGH SIBBIA ETC.VS.STATE OF PUNJAB 1980 SCC (2) 565.