How to Get Anticipatory Bail in India Step-by-Step Process

Anticipator bail is the bail that an individual can request for in case he apprehends arrest. In criminal cases, if an individual anticipates arrest then the criminal procedural law in India provides a provision for the grant of anticipatory bail. 

This is particularly important in case if there is a false case that is made for the purpose of defaming a person or to tarnish his reputation, in which case an application for anticipatory bail may be filed by such person and its grant will avoid any kind of arrest.        

What Is Anticipatory Bail?

From the very terminology, anticipatory bail is a form of bail that is granted to an individual who apprehends or anticipates an arrest which means the bail is granted prior to arrest. It is important to note that it is a direction given by the court that such a person shall not be arrested and shall be released on bail. 

The most striking feature of anticipatory bail is that the person should not be arrested yet and should be under the fear of being arrested. If the person is arrested then it no longer falls under the ambit of anticipatory bail and the arrested person shall apply for a regular bail.

Section 438 of CrPC deals with the provision of anticipatory bail which is incorporated into Bharatiya Nyaya Suraksha Sanhita, 2023 without any kind of additions or amendments in section 482.

An application can be filed under section 482 BNSS in case the individual apprehends arrest in the case of non-bailable offence. This section avoids the problem of fake custody cases and protects the reputation of such people. For having a better understanding on the differences between bailable and non-bailable offences, do visit our guide on Difference Between Bailable & Non-Bailable Offences

Who Can Apply for Anticipatory Bail?

According to section 482 of BNSS (section 438of CrPC), the following criteria should be fulfilled for applying for anticipatory bail and it includes:

1. The individual should be having a reasonable apprehension of arrest.
2. The apprehended arrest will be with regard to the commission of a non-bailable offence.
3. The FIR should be filed with regard to the case or likely to be filed.
4. The arrest should not have happened yet.    

For a better understanding on the procedure of applying for bail, do visit our guide on How to Apply for Bail in India? Complete Legal Guide 

When Should You Apply for Anticipatory Bail?

An anticipatory bail may be applied only in the case if the individual is anticipating arrest however the following points are to be duly noted:

1. Before arrest but after apprehension.
2. The apprehension is with regard to non bailable offence
3.  During police inquiry or FIR registration.

For a better understanding on FIR registration do visit our guide on What Is an FIR? How to File or Quash an FIR in India 

Step-by-Step Process to Get Anticipatory Bail in India

Step 1 – Consult an Experienced Criminal Lawyer

The first and foremost step for an individual anticipating arrest, is to consult an experienced criminal lawyer who would provide the right legal advice and adequate strategy that would assist the individual in applying for bail. You can always consult our experienced criminal lawyers for legal assistance.

Step 2 – File Anticipatory Bail Application

Upon consultation, then the next most crucial step is to apply a petition for anticipatory bail under section 482 of BNSS before the Sessions Court or Concerned High Court. In the case of bail application, the same could be filed either before Sessions or High Court but preferably first before the Sessions Court and if rejected then the same could be filed before High Court.  It should be filed with all the necessary documents that substantiates the case. 

Step 3 –Court Hearing & Arguments

The court will consider the application in the hearings where the petitioner prays for the grant of bail whereas the prosecution will vehemently oppose its application and the grant of bail.

Step 4 – Grant of Anticipatory Bail With Conditions

If the bail is granted, then it is upon conditions that it would be a conditional bail. The following conditions will be imposed upon the individual which should be fulfilled for the grant of bail:

1. The individual should be available for interrogation of the police
2. He should not make any inducement, threat or promise to any other who is aware of the facts of the case.
3. He should not tamper with the evidences or witnesses of the case
4. He shall not leave the country without prior permission of the concerned court that granted anticipatory bail.  

For a better understanding on the arrest procedure, do visit our guide on What to Do If You Are Arrested? Steps to Take Immediately   

Grounds on Which Courts Grant Anticipatory Bail

The court will grant anticipatory bail, only if the any of following grounds are existing in the instant case 

1. In case, the Court is satisfied that the case if fabricated and it is purely a false implication
2. The individual will be granted anticipatory bail in case if he does not have criminal antecedents.
3. In case, the dispute is in actuality having a civil nature however it is falsely tainted with criminal color.
4.  Most importantly, if the individual is readily available for investigation and would cooperate fully throughout the grant of bail.

When Anticipatory Bail May Be Rejected

However, it is to be duly noted that anticipatory bail may be rejected in the following case:

1. In the case the individual is involved in some serious offences
2. If the individual has a risk of absconding
3. The individual if granted bail would be detrimental to the prosecution case as a heavy chance of tampering with evidence.  

For a better understanding on the Rejection of bail, do visit our guide on What to Do If Bail Is Rejected? 

 Anticipatory Bail in Serious & Special Offences

In case of non bailable offence, bail is not a matter of right however it depends on case to case basis and it is important to note that in the following cases of serious and special offences, it is the discretion of the court to grant anticipatory bail which includes:

1. NDPS Act : It is extremely rare to receive an anticipatory bail in case of NDPS offences
2. Sexual offences: In the case of severe sexual offences like rape, the chances of grant are minimal.
3. Economic offences: In case of severe economic frauds the courts have not allowed the grant of anticipatory bail.        

Difference Between Anticipatory Bail and Regular Bail

1. Regular bail is applied after the arrest of the accused whereas anticpatory bail is applied at the stage of anticipation of arrest.
2. The regular bail could be applied at the Magistrate, Sessions Court or High Court whereas anticipatory bail shall be filed at Sessions or High Court.
3. The purpose behind filing a regular bail is for the release of the person who is in custody whereas the anticipatory bail is filed to prevent the arrest of the individual who fears arrest. 

Why Hiring the Right Criminal Lawyer Matters

In the case of applying for anticipatory bail, it is important to have the right and adequate legal advice for building up a strong case. The right criminal lawyer would guide the individual and assist him in strong drafting and legal reasoning. 

It also aids in ensuring that there is compliance with all the requisite court conditions.

For any kind of assistance, you can always consult our criminal lawyers in Bangalore.  

Conclusion

It could be concluded that anticipatory bail is filed at the stage when the individual apprehends arrest in the case of non bailable offence and for filing a petition, it is always important to receive the right legal consultation for building a strong case.