ANTICIPATORY BAILS

SECTION 438 CR.P.C – DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST

(1) If a person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the Hon’ble High Court or the Session Court for a direction under this section and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the Hon’ble High Court or the Session Court makes a direction under sub-section (1), it may include such conditions in the directions in the light of the facts of the particular case, as it may think fit, including:

  • a condition that the person shall make himself available for interrogation as and when required by investigating officer.
  • a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
  • a condition that the person shall not leave country without prior permission of the court or any other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).

WHICH COURTS HAVE JURISDICTION TO ENTERTAIN ANTICIPATORY BAIL APPLICATION.

If a person has an apprehension or reason to believe that he may be arrested for accusation of having committed an offence which is non-bailable , he may apply to Hon’ble High Court or Session Court for direction to the investigating authority, that in the event of arrest he shall be released on bail.

LANDMARK JUDGMENTS ON LAW OF ANTICIPATORY BAIL:
No time limit could be fixed while granting Anticipatory Bail
Sushila Agarwal v. State of Delhi

Not granting Anticipatory bail may cause violation of fundamental rights of an individual under Article 21 of the Constitution of India
Badresh Bipinbai Seth v. State of Gujarat

Compliance of section 41 (A) Cr.PC is mandatory in case of offences punishable with maximum 7 years imprisonment
Arnesh Kumar v. State of Bihar

Rights of First Informant/ Original Complainant to intervene in Anticipatory Bail Application
Vinay Potdar v. State of Maharashtra

Is it Mandatory for police to arrest a person only because his ABA is rejected?

The Hon’ble Supreme Court, in case of M.C Abraham and Anr v. State of Maharashtra has held that it is not mandatory for the police to arrest a person merely because his/her Anticipatory Bail has been rejected.

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