An anticipatory bail is sought when any person apprehends arrest by the police. If granted by the court, the police has to release the person, if arrested, on bail on terms and conditions as directed by the court in the anticipatory bail order.
An anticipatory bail application can be filed if the person apprehends arrest on accusation of a cognizable, non-bailable offence. An application can be moved even before registration of FIR if there is reasonable basis of apprehending arrest. However, it is not preferable to file anticipatory bail application when the facts are not clear or when there is no real threat of arrest. It is also not advisable to file an anticipatory bail application if there are high chances of rejection as rejection of anticipatory bail indirectly creates indirect pressure on police to make arrest.
The anticipatory bail application can be filed either before Sessions Court (at district level) or before the High Court (at state level). However, in practice, it is advisable to approach Sessions Court first as it gives two opportunity to the applicant. Moreover, High Courts generally do not entertain anticipatory bail applications if it is approached directly. However, in special cases, like strike of advocates, closure of Sessions Court or some danger in visiting the local court, etc., High Court directly entertains anticipatory bail applications.
Grant of anticipatory bail is discretionary. However, courts are guided by various considerations such as:
General guidelines for granting an anticipatory bail were laid down by the Supreme Court in the case of Gurbaksh Singh Sibbia & Ors. vs. The state of Punjab, (1980) AIR 1632, and reaffirmed in Siddharam Satlingappa Mhetre vs. the State of Maharashtra, (2011) (1) SCC 694.
When the applicant files an application for anticipatory bail, the Court can –
If the application is rejected or if no interim relief is granted, police can arrest the applicant without warrant. After hearing the Public Prosecutor, the application is finally heard and a final order is made. The Court can also direct the applicant to be personally present at the time of final hearing. The Court can impose conditions while granting the anticipatory bail. However, these conditions are to imposed on the basis of facts and circumstances of the case and should not be imposed in a routine manner.
LIFE / DURATION
Anticipatory bail, once granted, continues till the end of the trial. [Refer Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr, 2020 SCC OnLine SC 98]
The conditions or special conditions that can be imposed are discretionary and are guided by the facts of the case. One or all of the following conditions may be imposed –
In addition, special and other restrictive conditions may be imposed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special conditions can be imposed only if the facts of the case so warrants, but should not be imposed in a routine manner, in all cases. [Refer Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr, 2020 SCC OnLine SC 98]
If the anticipatory bail is rejected by the Sessions Court, the applicant can move the High Court as a matter of right.
If the anticipatory bail is rejected by the High Court, the applicant can move Supreme Court by way of a Special Leave Petition (SLP) under Article 136 of the Constitution of India. However, such petition is heard on merits only if leave is granted by the Supreme Court.
CANCELLATION OF BAIL
The police or the investigating agency can move the court (which granted anticipatory bail) for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperation during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.
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