The Procedure to File Anticipatory Bail in India U/s 438 Cr.PC,1973

Imagine a situation, when one day you came to know that your business partner or your distant relative has filed a false criminal complaint against you, to satisfy their personal agenda. These situations often arise without any notice, but before you get a panic attack, let us walk you through the procedure to file an Anticipatory Bail.

What is an Anticipatory Bail?

Anticipatory Bail enables a person to obtain his release in case he has a reasonable apprehension of arrest for a non-bailable offence (offences generally punishable with more than 'three years' imprisonment). The provision regarding Anticipatory Bail is given under Section 438 of the Code of Criminal Procedure, 1973. As held in Adri Dharan Das v. State of West Bengal, the power of Anticipatory Bail was introduced to deal with extraordinary cases where it appears that the person may be falsely implicated or where there are reasonable grounds to believe that a person accused of an offence is not likely to otherwise misuse his liberty.

Procedure to apply for an Anticipatory Bail u/s 438 Cr.PC,1973

Once an individual learns of the existence of a criminal complaint or FIR (First Information Report) lodged against him, or the likelihood of a criminal case being filed against him, the first step would be to contact a lawyer at the earliest opportunity. This is important because the moment a person gets arrested, the option of anticipatory bail is not available anymore. (You can find a lawyer hassle-free from the comfort of your home and suitable for your budget on EasyAdvocacy.)

Now, that the lawyer is engaged, it is his job to draft an anticipatory bail mentioning the reasons and the facts surrounding the matter, and attaching all the requisite documents, like a certified copy of the complaint filed with the police, a certified copy of the FIR or a certified copy of the charge sheet. The anticipatory bail is to be filed along with the Vakalatnama (indicating representation of an accused) before the appropriate Sessions Court or the High Court, as the case may be.

When the matter comes up for hearing, the lawyer will present the case before the court and the court - after taking into consideration all the factors involved, like the nature and gravity of the accusation, the antecedents of the applicant and the possibility of the applicant to flee from justice - will either reject the application forthwith or issue an interim order for the grant of an anticipatory bail.

Where the Anticipatory Bail is rejected

In case of rejection in the Sessions Court, the order of dismissal could be challenged before the appropriate High Court and thereafter, the Supreme Court.

Where an interim order has been passed...

An interim order is like a temporary bail that is granted by the court before it hears the opposite party on the date of final hearing. After hearing both the parties, the court will make a final order of either rejecting the anticipatory bail application or granting anticipatory bail imposing such conditions as the court deems necessary in regard to the facts of that particular case.

An individual who has been granted anticipatory bail cannot be arrested and shall be released on bail, until and unless the said Anticipatory Bail granted stands cancelled by the court, as a result of a breach of an imposed condition.

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