Over the period of time criminal law has emerged and the development in criminal procedure code 1973 took place and it also helps in making the process of filing the criminal case in the court of law. The word anticipatory bail doesn’t define in the Cr.P.C 1973 but the section 438 of Cr.P.C 1973 explains the concept of anticipatory bail, if a person has a reason to believe that he may be arrested for the offence before the arrest takes place application of anticipatory is to be applied and when the arrest occur then the anticipatory bail becomes operative.
Anticipation- The action of individual to anticipate, expectation or making a prediction of something is going to happen.
Bail- It is the condition where the accused is temporarily released and the trial is awaited and some amount to be paid to get released on bail.
LAW IN INDIA
1) Section 436 Cr.P.C 1973.
2) Section 437 Cr.P.C 1973.
3) Section 438 Cr.P.C 1973.
4) Section 439 Cr.P.C 1973.
SECTION 436 Cr.P.C-
When the bail is to be taken.
(1) When any person other than person accused of a non-bailable offence and arrest is being done without the warrant by the police officer in the concerned police station or by the court before which he is going to be appeared and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to offer bail, such person shall be released on bail. Provided that if the court thinks it fit, he should be released without sureties’ by executing bond and no need to consider his bail application.
(2) In this situation if the person fails comply with the condition of the bail-bond as their time and place of attendance then the persons bail should be refused and cannot release him. when on a subsequent occasion within the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon a person bound by such bond to pay the penalty thereof under section 446.
SECTION 437 Cr.P.C–
Bail to be taken in cases of non- bailable offences.
1) In the situation where the person accused or suspected of any non-bailable offence is arrested or detained by the police officer and brought before the court other than high court or session court then he shall be released on bail, but-
- i) Shall not to be released on bail if there is reason to believe that the person is accused of the offence punishable with death or life imprisonment.
- ii) Such person shall not be released if he is accused of the offence punishable with death or life imprisonment and also in the situation if the person is previously convicted hence, also not liable get benefit of bail. Provided that if the person is under age of about 16 years and a woman who is sick or infirm then there is a possibility of them to get out of the custody with the help of the bail.
2) If it appears to the officer or to the court that the person at any stage of inquiry and trial that there are no reason to believe that person committed such offence but there is a light of further inquiry into that matter the he can be released on bail or at the discretion of the court.
3) Court imposes conditions as follows-
- i) The person should attend accordance with the bond without securities.
- ii) so as to make sure that such person shall not commit an offence almost like the offence of which he’s accused or of the commission of which he’s suspected.
4) An officer or a court releasing such person accused of the offence and shall record the reason behind release of such person.
5) The court has the authority to commit to detain or arrest of the person released previously.
6) The person shall be released on bail in the case where it is trial under magistrate for the non-bailable offence and the trial not concluded in 60 days from the date of taking evidence and in that period of time he is under custody then he shall be granted bail and be released.
7) If, at any time after the conclusion of the trial of an individual accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused isn’t guilty of any such offence, it shall release the accused, if he’s in custody, on the execution by him of a bond without sureties for his appearance to listen to judgment delivered.
SECTION 438 Cr.P.C–
Grant of bail apprehending arrest.
1) When any person has the reason to believe that he may get arrest then in that situation he can approach High court or Court of session and if that court thinks fit in the event of such arrest, he shall be released on bail.
2) When the directions are given under this sub-section (1) following conditions are prescribed-
- a) Condition is such that whenever he/she is required for interrogation by police officer he/she shall make him available.
- b) That the place is such that person should not directly or indirectly make any inducement, threat or any promise to the individual who is familiar with facts of the case dissuade him not to disclose the facts before the court or any police officer.
- c) The condition is such that the person shall not leave India without the prior permission of the authority.
- d) If the bail is granted under section 437 Cr.P.C then conditions in such section should be imposed.
3) If such person is thereafter arrested without warrant by a politician responsible of a police headquarters on such accusation, and is ready either at the time of arrest or at any time while within the custody of such officer to offer bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue within the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).
SECTION 439 Cr.P.C–
Power of High Court and Sessions Court for bail as follows-
1) High Court and Session court.
(a) Any person who is accused of the offence and he is custody for doing the offence should be released on bail with the help of the conditions specified in sub-section (3) of section 437 Cr.P.C 1973.
(b) That any condition implemented by a Magistrate when releasing an person on bail be put aside or modified: as long as the supreme court or the Court of Session shall, before granting bail to an individual who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
2) High Court or Court of Session who has been released such person from the custody still can cancel the bail and can take him to arrest or custody.
Gravity and Nature of offence
The previous act of the accused matter the most in these cases if the accused is previously imprisoned and convicted for the cognizable offence. These are relevant factors.
FLEEING AWAY FROM JUSTICE
This is important that the applicant should not be fly away with the intention to humiliate the accused in this situation and if so is the intention of the applicant to get the accused arrested and injure and humiliate him then by releasing him on the bail request can be done and also can prevent injury to the accused in false cases.
CASE- K. Gajendra Baidu Vs State of Andhra Pradesh – 
In this case the court held that the essentials for availing bail arises only for the situation when some persons try to make their rival in a bad position.There are reasonable grounds for holding that a person accused of an offense is not likely to abscond or otherwise misuse his liberty while on bail.
In this article we have discussed all aspects of the anticipatory bail and it is most important concept in the field of criminal law whenever there is a false case is instituted then in that case by taking the plea of anticipatory bail the person prevents himself from getting harassed from the false trial as the dignity in the society should be maintained and helps in escaping from the 4 corners of getting arrest.
 1992 (3) ALT 27, 1993 (1) ALT Cri 290.
This blog is written by Shivam, Vivekananda Institute of Professional Studies.
Some more of Shivam BLOGs,
- ACID ATTACK: A NEW FACET OF GENDER-BASED CRIME
- SECTION 498A OF INDIAN PENAL CODE 1860
- DEATH BY NEGLIGENCE
- TRIAL AND TYPES OF TRIAL
- CRIMINAL MISAPPROPRIATION OF PROPERTY
Visit our Instagram page @lawyergyan at this link.