Procedure of Getting an Anticipatory and a Regular Bail

Published On: 1 October, 2023

Authored By: Avinash Pandey
NMIMS Kirit P. Mehta School of Law, Mumbai

Concept and Process for Acquiring Anticipatory Bail & Regular Bail

The idea of release on bail has become a fundamental component of Indian criminal law and a widely accepted premise in all legal systems across the world. In terms of the law, bail refers to securing the release from custody of an individual undergoing prosecution or an appeal by making a payment as collateral to secure his timely submission to the appropriate authorities. The concepts of “bailable offense” along with “non-bailable offense” are outlined in the following manner in “Section 2(a) of the Criminal Procedure Code of 1973”: “Bailable violations indicates a violation which is identified as eligible for bail in the First Schedule and which is deemed eligible for bail by any other law that is for the time being implement, along with non-bailable violation indicates any other offense.” Additionally, “Sections 436 to 450” outline the guidelines for the issuance of securities and bail in criminal proceedings. The Cr.P.C. makes no mention of the quantity of protection that the defendant must post to ensure his detention.

Throughout India, a legal mechanism known as bail enables an accused individual to obtain their short-term discharge from police or court detention while they are awaiting judgment for a criminal offense. It is a basic right protected by “Article 21 of the Indian Constitution”, which ensures the right to individual freedom including safeguards against arbitrary imprisonment. The Indian judicial system has a legal mechanism known as regular bail that enables someone who has been arrested to win their release from jail while their case is in progress. “Sections 437 and 439 of the 1973 Code of Criminal Procedure” (CrPC) describe this clause in detail. Regular bail is crucial in making sure that the ideals of equal treatment, fairness, along freedom of speech are respected. Within the Indian legal system, anticipatory bail is a mechanism that enables a person to request pre-arrest bail in advance of being detained for an offense for which bail is not permitted. “Section 438 of the 1973 Code of Criminal Procedure” (CrPC) codifies this requirement. Anticipatory bail protects individuals against intimidation including unwarranted imprisonment.

A person may go to the High Court as well as the Sessions Court to get anticipatory bail. The individual should seek a reputable attorney for the granting of anticipatory bail immediately as they become aware that they might be imprisoned by “Sections 406, 434, or 498A”. The Attorney will then submit a Vakalatnama together with the proper anticipatory bail application to the relevant district court. The court will then set a hearing date for the application. When the District as well as Sessions Court refuses anticipatory bail, it frequently happens that the accused needs to appeal to the High Court, which typically approves anticipatory bail. There are a few requirements to be completed once the bond is approved before the defendant is released on bail. The Court of Appeal has the authority to impose various requirements and limitations.

Any individual has the right to report themselves when they have grounds to suspect that they may be arrested on trumped-up or false accusations, because they are at odds with someone, or they are concerned that false accusations may be made against them petition the High Court or even the Court of Session by “Section 438 of the Code of Criminal Procedure” for the court’s ability to issue bail in the case of his detention if it sees proper, order that he be freed on bond in the case of such an arrest. The following are the conditions on which an individual can apply for an Anticipatory Bail:

  1. The accusation’s origin along with seriousness.
  2. The applicant’s history, including whether or not he has ever been imprisoned after being found guilty by a court of any cognizable violation.
  3. The applicant’s potential escape from the law.
  4. If the charge was brought against the applicant with the intent to cause harm or humiliation by having him detained, either disregard the application right away or give a temporary order granting anticipatory bail.

Any person has the right to apply to the tribunal of the session as well as the high court according to Section 438 of the code of criminal procedure for the granting of bail in the event of their arrest if they have reason to suspect that they may be detained on erroneous or trumped-up allegations or due to animosity with an individual, or if they are concerned that a false case has the potential to be established up against them. The court may, if it sees fit, govern that in the occasion of such a detention, the individual shall be let go on bail. “When an individual opposed to whom an arrest warrant has been handed down and seems to evade as well as obscuring oneself to evade the execution of the warrant as well as established as an alleged offender by “Section 82” of the Code, he does not have access to the assistance of anticipatory bail,” the Hon. APEX Court ruled in “State of M.P. vs. Pradeep Sharma”[1].

In “Gurbaksh Singh Sibbia v. State of Punjab[2], the Hon. Supreme Court stated that “the main difference regarding an ordinary order of bail as well as an order of anticipatory bail is that the latter type of bail is bestowed in anticipation of detention and is, consequently, operational at the exact moment of detention, whereas the previous kind of bail is provided after detention and consequently indicates discharge from the control of the police.” Regular bail cannot be awarded while temporary anticipatory bail is authorized by higher courts while the case is still pending.

The termination of bail and placement of the person charged back in jail are clearly outlined in the Code of Criminal Procedure. According to “Section 437(5)”, a court that granted liberty to an individual on bail by “Sections 437(1) or (2)” can, if it deems it appropriate, order that the person be taken into custody and committed to jail. Accordingly, “Section 439” gives the High Court and the Court of Session the power to revoke bail. The revocation of bail and placement of the accused back in jail are expressly provided for under “Section 439(2) of the Code of Criminal Procedure”. In general, the subsequent two circumstances allow for the use of the authority of termination of bail:
(i) based on the facts of a case, primarily based on the claim that the bail-granting order was erroneous, made without proper consideration, or in contravention of any fundamental or procedural regulation.

(ii) Based on abuse of liberty following the granting of bail or additional aggravating factors.

Within the Indian criminal justice system, anticipatory bail is a fundamental legal clause that safeguards people from arbitrary detention as well as arrest. It preserves the concepts of due process and individual freedom. Nevertheless, depending on the particulars of each case and how the courts understand the pertinent law rules, the procedure and requirements for securing anticipatory bail may change. Regular bail is a crucial legal clause in the Indian criminal justice system that strikes a balance between a person’s right to freedom and the requirement to see that justice is done. The appropriateness of providing bail in each instance is carefully considered by the courts, who take into account the crime, the person accused, and the broader interests of the community. “Every criminal conduct is viewed as a crime against the state, thus the community has a lot riding on whether bail is approved or rejected. The sacredness of each person’s freedom and the betterment of the community must be perfectly balanced in the decision on whether to grant or deny bail”.

References – State of M.P. vs. Pradeep Sharma. – Gurbaksh Singh Sibbia v. State of Punjab.




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