Releasing a person on bail before the arrest is commonly known as anticipatory bail. The Law Commision in its 41st report suggested to include the provision of anticipatory bail as false implication of political rivals by influential persons had been rising. Another justification given by the Commission for including the provision of anticipatory bail was to prevent the arrest of an accused who is not likely to abscond or misuse his liberty on bail. Pursuant to this, the concept of anticipatory bail was introduced in the CrPC, 1973. Section 438 of the CrPC deals with the procedure of granting anticipatory bail.

Procedure of getting anticipatory bail.

If a person has reasonable belief of getting arrested in a non-bailable offence, he may apply for anticipatory bail. The Indian Penal Code divides offences into two classes – bailable and non-bailable. A person accused of a bailable offence has a right to get the bail from the police itself whereas in non-bailable offences one has to approach the court for getting bail.

Reasonable belief does not mean the mere fear of getting arrested but it should be based upon grounds which are capable of being examined by the court objectively. Filing of an FIR is not a condition precedent to obtain anticipatory bail. A person may apply for anticipatory bail even if there is no FIR registered against him. But in such case he must prove his belief of getting arrested by other objective means.

The Court of Session and the High Court have concurrent jurisdiction to grant anticipatory bail. It means one can either approach the Court of Session or directly to the High Court for obtaining anticipatory bail. If one applies for anticipatory bail in the Court of Session, one has opportunity to appeal to the High Court and subsequently to the Supreme Court in case of denial of the bail. A person directly approaching the High Court has only one chance to appeal in case of denial.

If an application for anticipatory bail has been moved to the High Court or Court of Session, the court will decide whether to grant the relief after considering following factors:-

• The nature and gravity of the accusation.
• The past conduct of the applicant including whether he has been convicted in past for any other offence.
• The possibility of the applicant to abscond, and
• Whether the accusation has been made to humiliate the accused by having him arrested.

After considering the factors given above, the court may either reject the application immediately or issue an interim order for grant of anticipatory bail. In case the court grants interim order of anticipatory bail, a notice is issued to the Public Prosecutor and the Superintendent of Police for giving them an opportunity of being heard during final hearing of the application. In 2005, the CrPC was amended to include a condition that the presence of the accused during final hearing shall be obligatory.

The court granting the bail may include following conditions in the bail :-

• The person shall make himself available for interrogation by a police officer whenever required
• The person shall not induce, threat or promise any other person acquainted with the facts of the case to dissuade him from disclosing such facts to the court or police officer
• The person shall not leave India without prior permission of the court
• Any other condition applicable for normal bail.

If a person who has been granted the anticipatory bail is arrested without warrant by a police officer, he must release that person the moment he furnishes bail amount. The warrant of arrest issued by a magistrate against such a person must be bailable.