How to apply for anticipatory bail – legal recourse and assistive process

Overview: A person may start the process for an anticipatory bail if he/she is apprehensive of being arrested for a non-bailable offence. It serves as a pre-emptive measure for a person who has a reason to believe or is expecting to be arrested. It is a direction to release a person on bail even before he/she is arrested. This, however, cannot be used as a means to evade the investigative process by the police authorities. 

Purpose: To secure release on bail in apprehension of being arrested for a non-bailable offence. 

Areas of Application of Law: A person may apply for bail in the sessions court or a high court under Section 438 of the Code of Criminal Procedure (CrPc), 1973. 

Process: Below is the step by step recourse for applying for anticipatory bail: 

  1. The person expecting to be arrest should engage a lawyer and inform him of the circumstances because of which he/she may be expecting to be arrested.
  2. The lawyer, after asking for the below mentioned documents will file a petition for anticipatory bail, either in the session court or the high court depending on the nature of the offence for which he might be expecting to be arrested.
  3. The accused should ensure that he has read and understood the anticipatory bail petition prepared by the lawyer before he files it and thereafter make sure that all relevant affidavits and Vakalatnama are signed by him.
  4. On the first day of hearing, if the court is satisfied of merits in the case, a notice will be issued to the opposite parties and date for the next hearing will be given. Court will also ask the investigating officer of the case to file a status report before the next date of hearing.
  5. Within a few days from the first hearing, the accused has to file requisite amount of process fee with the court registry. After this the notice will be prepared by the court authorities and this along with a copy of the plaint will be served upon the respondent either by the court through speed post/courier/ordinary post/email. If the process fee is not paid, notice will not be issued to the opposite party and in extreme cases the court may even dismiss the petition for failure to comply.
  6. It is a possibility that notice could be accepted by the respondent (public prosecutor) in court itself on the first hearing.
  7. Upon receipt of notice, if that is the chosen option, the respondent (public prosecutor) has to appear in court.
  8.  On the next date of hearing, the public prosecutor will appear in court along with a reply to the bail petition and demonstrate as to why bail should not be granted.
  9. After a reply from the respondent (public prosecutor) and the status report of the investigating officer have been filed before the court, it will hear arguments and make necessary inquisitions from the accused/his lawyer regarding such mitigating circumstances on which bail is sought.
  10. The lawyer must convince the court that the FIR filed without any basis, the person has good antecedents and does not have any criminal case/record pending against him, he is not required for any investigation or interrogation, will present himself as and when the court requires, will not influence witnesses or abscond from the country.
  11. After completion of arguments, the court will arrive at its decision of whether bail is to be granted or not.
  12. In case bail is granted, the court may put the accused to such terms and conditions as it sees fit.
  13. These could include depositing of some money, surrendering of passport, not leaving the state/country without intimation to the police, not to influence witnesses, cooperating  in investigation process and make themselves available before the investigating agency, as and when directed.
  14. On showing the courts’ order showing grant of anticipatory bail to the police authorities, the person would be allowed to be released on bail in the event of arrest. 

 Documents required to be submitted in the court: Copy of first information report (FIR), warrants of arrest (if issued), documents on which the person will rely to secure bail (ex: medical reports, medical bills, family obligations, ailing mother, documents contradicting prima facie allegations made in the FIR such as plane tickets, passport copy etc)  

Punishment/Expected Relief: Release of the person anticipating arrest. 

Landmark Judgments

1. Siddharam Satlingappa Mhetre vs State Of Maharashtra 

2. Ranjit Singh v State of Madhya Pradesh



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