ANTICIPATORY BAIL?

WHAT IS ANTICIPATORY BAIL?


Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
On filing AB , the opposition party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this).
Anticipatory bail is nowadays being used for countering false 498 cases (Dowry law). It is one of the first and last lines of defense for a 498A victim for preventing him (groom) and his family getting arrested on trumped-up charges by the estranged daughter-in-law.

>>
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Here is an explanation of Anticipatory bail given by the Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:

35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.

Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.

Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.

After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.

>>

The four factors, which are relevant for considering the application for
grant of anticipatory bail, are :

The nature and gravity or seriousness of accusation as apprehended by the applicant;

The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;

The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and

The possibility of the appellant, if granted anticipatory bail, fleeing from justice.