Bail refers to the temporary release of an accused person from custody. It is a procedural safeguard that protects the liberty of a person or accused while his/her trial is ongoing. It is enshrined in the principle of “fair trial”. Regular Bail and Anticipatory Bail both apply for non-bailable offences. Regular bail refers to the release of a person on bail after he/she has been arrested with reference to a criminal case. Anticipatory bail, on the other hand, is secured by a person in reasonable apprehension of arrest. While both regular and anticipatory bail protect an accused’s personal liberty, it is important to understand the difference between the two to determine which type of bail to apply for at which stage of the investigation.
Without understanding the difference between regular bail and anticipatory bail, or their statutory basis, a person suspected of a criminal offence may wrongly apply for the wrong type of bail, resulting in procedural setbacks and a period of delay in custody. For example, a person may apply for anticipatory bail after his arrest with reference to a s498A cruelty case; thereby, his application would get dismissed at the very threshold, leading to his prolonged stay in custody. Read Our Guide to understand bail under Indian law.
What is Regular Bail?
Regular bail refers to the release of an accused person from police or judicial custody after their arrest. You can apply for regular bail under sections 437 and 439 of the CrPC 1973, now sections 480 and 483 of BNSS.
Regular bail is sought by the accused person before the Magistrate’s Court under Section 437 CrPC (now Section 480 BNSS) and before the Sessions’ Court or High Court under Section 439 CrPC (now Section 483 BNSS). Before which court the bail application is filed depends on the nature of the case. Generally, bail under section 437 CrPC (480 BNSS) cannot be sought before a magistrate for an offence punishable with death or life imprisonment. Under Section 439 of the CrPC (483 BNSS), the Sessions’ Court and High Court have broader and discretionary powers.
What is Anticipatory Bail?
Anticipatory Bail is sought in anticipation of arrest, i.e. a person who reasonably apprehends arrest may seek an anticipatory bail to be released on bail should he/she be arrested. It protects personal liberty before any detention/ arrest actually happens. The statutory basis for anticipatory bail is governed by Section 438 CrPC (now Section 482 BNSS). This provision allows a person to approach the Session’s Court or High Court for anticipatory bail.
Anticipatory bail is applied for as soon as the accused person becomes aware that a complaint/ FIR has been lodged against him/her to prevent detention. It must be noted that once a person has been arrested, he/she cannot apply for anticipatory bail after such an arrest. It must be noted that anticipatory bail does not apply to specific offences such as rape and gang rape.
While granting anticipatory bail, the court analyses the gravity of the charges, the criminal antecedents of the accused person, and whether the case is frivolous.
Key Differences between Regular Bail and Anticipatory Bail
Basis | Regular Bail | Anticipatory bail |
Stage | After an arrest has been made | In reasonable apprehension of arrest, or before arrest |
Purpose | To be released from custody | To be protected from arrest |
Provision | Section 480 and 483 of BNSS, 2023 (Section 437 and 439 of CrPC) | Section 482 of BNSS, 2023 (Section 438 of CrPC) |
Authority | Magistrate or Session’s Court | Session’s Court or High Court |
When Do You Need Regular Bail?
Regular bail is applied by an accused after he/she, if an FIR has been registered and they are arrested. It can be applied when a person is in police or judicial custody.
Once an FIR is registered for a non-bailable offence, the person is arrested and placed in police custody for investigation. He/she may also be remanded to judicial custody. In such situations, the remedy lies in applying for regular bail.
When Do You Need Anticipatory Bail
Anticipatory bail is proactively applied for when a person has a reasonable apprehension of arrest. That is, before any arrest has taken place, there is apprehension in the mind of the person that he may be arrested, as any complaint has been filed or is likely to be filed.
It is often availed by persons who fear there will be frivolous, false complaints made against them in relation to any non-bailable offence. Thus, such a person to protect his/her liberty or prevent any unnecessary detention in police or judicial custody applies for anticipatory bail.
Oftentimes, there may be apprehension of a false complaint being filed against any person due to certain family disputes, business disagreements, personal issues, etc.
Can Anticipatory Bail Be Converted to Regular Bail?
Anticipatory bail does not automatically convert to regular bail. That is, once a person is arrested, his/ her anticipatory bail loses force. He/ she must apply for regular bail via a new application, which is determined by the court accordingly.
Anticipatory bail ensures that immediate arrest is prevented. When such protection from arrest is granted, the accused person must cooperate with the investigation, execute a bail bond and furnish a surety. Usually, an anticipatory bail continues till the end of the trial unless it is cancelled or modified by the court. (as per Sushila Aggarwal v. State (NCT of Delhi), 2020) Anticipatory bail continues even if the police file the chargesheet.
Factors Courts Consider Before Granting Bail
Courts consider a variety of factors while deciding a regular or anticipatory bail application, such as:
- The nature of offence: i.e. seriousness, threat to public safety, etc.
- The criminal antecedents of the accused: the criminal history, prior convictions, and pending cases of the accused.
- The risk of absconding of the accused: i.e. whether he would abscond or evade the investigative authorities if released.
- The possibility of evidence tampering, influencing witnesses, and interfering with a fair investigation by the accused.
While determining whether bail must be granted, each factor must be assessed individually.
Common Mistakes People Make While Applying for Bail
- Delaying legal action: i.e. delay in filing for bail even after knowing there is a likelihood of arrest, or after arrest has been made. This adversely affects one’s position before the court.
- Applying in the wrong court: applying in the court that does not have jurisdiction or seeking the wrong remedy, such as anticipatory bail after arrest, which leads to dismissal.
- Incomplete documentation, such as a bail application without the FIR, prior court orders, or any other supporting material.
To avoid such mistakes, contact a criminal lawyer, who can guide you throughout the process.
Which Bail Option Is Right for Your Situation?
If You Have Already Been Arrested
Once a person is arrested in relation to any non-bailable offence, the statutory remedy lies in applying for regular bail before the Magistrate, or the Sessions Court or the High Court, depending on the type of offence.
If You Fear Arrest
If there is reasonable apprehension of arrest in the mind of a person in relation to any allegation of a non-bailable offence, an application must be made before the Session’s Court or High Court. Anticipatory bail cannot be sought frivolously; there must be a “reasonable” apprehension that such a person shall be falsely named as an accused in a non-bailable offence.
If Bail Was Rejected Earlier
If bail was rejected by the Magistrate, the accused person may approach the higher court (Session’s Court or the High Court itself) with a fresh application stating the change in circumstances, or with new grounds.
Why Legal Advice Is Important Before Applying for Bail
Taking legal advice before applying for either type of bail is essential, as each and every criminal case is unique, even if the charges are similar. Thus, depending on the case, proper grounds according to the facts must be set out in the bail application; such an application must be filed before the appropriate court with proper documentation. Without the expertise of a lawyer, mistakes may be made in applying to the court of proper jurisdiction or applying under proper grounds. Therefore, it is advised that an accused person must engage an experienced advocate to analyse the facts of his/her case, improve on a legal strategy, identify the grounds, and draft the application for presentation before the appropriate court. This ensures favourable outcomes for the accused, improving his/her chances of success. Contact us if you are looking for top criminal lawyers in bangalore.
Conclusion
In a nutshell, while regular bail and anticipatory bail serve the same purpose, i.e. statutory protections of personal liberty of an accused person, the difference lies in the stage of proceedings when each of these bails is applied for, i.e. regular bail is applied for after arrest has been made, and anticipatory bail is applied for in anticipation of arrest as a pre-arrest protection. It is important to identify the correct type of bail that applies at the present stage and apply for the same. Delaying the bail application ultimately may adversely affect the outcome for the accused person. Each bail application must be specific to the facts of the case, laying down the grounds. It is advised that one seek the expertise of a seasoned lawyer for the same, for the effective pursuit of a remedy.
Frequently Asked Questions
1. Who can apply for regular bail in India?
The accused person after getting arrested can apply for bail
2. Is anticipatory bail available for all offences?
No. It is available for non-bailable cases only. If it is a bailable offence then regular bail should be filed.
3. Which court grants anticipatory bail in India?
Session’s Court or High Court
4. Can anticipatory bail be cancelled by the court?
Yes, if the accused violates the conditions imposed on them.
5. Can I apply for regular bail after anticipatory bail expires?
Yes.
6. Do I need a lawyer to apply for regular or anticipatory bail?
Yes
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