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Criminal

Anticipatory Bail

09 Nov 2020 12:00 AM

HOW TO GET ANTICIPATORY BAIL?

 

Follow these 7 steps to get anticipatory bail:

1.Immediately contact a good lawyer to apply for anticipatory bail and pre-arrest notice.

2.Draft an anticipatory bail application along with your lawyer and sign it.

3.The application must also include an affidavit supporting it.

4.A copy of the FIR along with other relevant documents must be attached.

5.File the application in appropriate district & session court. 

6.You must send somebody with your lawyer to the court for the hearing of your application.

7.The protection under anticipatory bail is available to you, till the end of the trial.

 

After the above procedure, there are two situations that may prevail:

 

  1. When an FIR has been filed:

a.The investigating officer will send you a notice of arrest 7 days before arresting you.

b.In this time period, you can file for an anticipatory bail.

 

 2. When no FIR has been filed:

a.In such a situation, there will be no grounds for granting a bail.

b.Your lawyer must request the court to grant you a pre-arrest notice instead.

c.If granted, use this pre-arrest notice period to apply for anticipatory bail.

If your bail application is rejected, you can apply to the High Court and further to Supreme Court.

 

Conditions based on which the anticipatory bail is granted:

⦁Filing of First Information Report (FIR) is not a pre-condition for filing for an anticipatory bail.

⦁The nature and gravity of the accusation;

⦁You shall not leave India, without the previous permission of the court.

⦁Reason to believe that, you may be arrested.

⦁You shall make yourself available for questioning by the police officer as and when required;

⦁You shall not make any threat or promise to any witnesses.

 

What to do if my anticipatory bail is rejected?

 

If your anticipatory bail application is refused in Sessions court, you can approach the High Court or further to the Supreme Court.

 

For how long is my anticipatory bail valid?

 

Once you get an anticipatory bail, it normally remains valid till your case is completely disposed of. However, in few cases the court decides the time period for which the bail is granted. If you have an anticipatory bail, you do not need a regular bail unless the court orders arrest.

 

Anticipatory Bail should not to be limited by time, (As per recent judgement of Suprem Court in Sushila Aggarwal and others V/S State (NCT of Delhi) and another, In special leave petition(CRIMINAL) NOS. 7281 - 7282/2017 on 29th January 2020)

The Supreme Court today settled the difference of opinion stemming from its two prior verdicts by ruling that anticipatory bail can’t be restricted by a time limit unless a competent court orders such a condition in a specific case.

 

A five-judge constitution bench said the provisions of the Code of Criminal Procedure that govern bail and anticipatory bail differ on the aspect of when such orders can be passed. While a regular bail can be granted after a formal arrest, anticipatory bail can be ordered prior to the arrest. A bare reading of relevant Section 438 of the CrPC that deals with these provisions nowhere talks about a fixed time limit for anticipatory bail, the court said.

The bench—comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice MR Shah and Justice S Ravindra Bhat—was set up to settle the issue because of the two conflicting judgments of the top court in two cases: its 1980 ruling in Gurbaksh Singh Sibbia and others v. State of Punjab; and the 1996 verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra.

 

In the Gurbaksh Singh Sibbia case, the top court held that Parliament hasn’t added any specific conditions or restrictions in Section 438 of the CrPC but left it to the court to pass restrictions on a case-to-case basis.

 

In matter of Salauddin Abdulsamad Shaikh, the court, however, held that orders of anticipatory bail need to necessarily have a time limit.

 

The five-judge constitution bench held that there can’t be any time-limit restriction. But it clarified the questions that the competent courts deciding on anticipatory bail must keep in mind:

 

The application of anticipatory bail must include bare essential facts related to the offence for which he (applicant) reasonably fears arrest as well as his side of the story. Registration of a first information report by the police isn’t a necessary pre-condition to apply for anticipatory bail.

 

Courts dealing with anticipatory bail cases should hear the public prosecutor and obtain facts even before granting a limited interim anticipatory bail.

 

The courts must also consider the nature of the offence and the likelihood of that individual’s chances of influencing the investigation or tampering with evidence or fleeing the country. The courts can pass restrictive conditions in the anticipatory bail orders on a case-to-case basis.

 

The anticipatory bail orders can continue till the end of the trial and the court should keep in mind the conduct of the accused while passing the orders.

 

Anticipatory bail only gives protection from arrest to a person in relation to offence he apprehends arrest in. There cannot be a blanket anticipatory bail that allows an individual to commit other offences.

 

The order of anticipatory bail only grants protection from arrest but does not in any other way limit the rights of the police to conduct its investigation.

 

The police will be free to move courts seeking permission for arrest of an accused who has been granted anticipatory bail by a court.

 

The constitution bench overruled cases—including Siddharam Satlingappa Mhetre v. State of Maharashtra & Others—where the court ruled that absolutely no restrictive conditions can be imposed in an anticipatory bail order. It also overturned cases where time limits were imposed incorrectly.

The judgment was authored by Justice Bhat and Justice Shah and the other judges on the bench concurred with their view. 

 

What next after anticipatory bail?

The procedure that is followed once bail is granted to you:

⦁You are required to be present at the police station; whenever you are called.

⦁You should take your friends or relatives along with you, who shall act as your surety.

⦁You and your sureties will be required to sign a bail bond, which is a document that mentions about forfeiture of the bail amount and other legal consequences, in case you do not follow the directions of the court.

⦁Your sureties should carry the required bail amount as directed by the court.

⦁The bail amount is decided by the judge.

⦁Sometimes you may be directed to keep your property as a security for bail. Your property can be seized or sold, if you do not appear when required by the court.

 

Basic expenditure to get an anticipatory bail?

Since, consulting a lawyer is a must in order to get an anticipatory bail, thus you must be aware of the amount of money that you need to spend for the same. An anticipatory bail can cost you around Rs.25,000 to Rs.30,000, depending on the seriousness of your case and the skills and experience of your lawyer.

 

Rights under anticipatory bail?

 

Once you have acquired an anticipatory bail, the police cannot arrest you for the time period mentioned in the bail order. But if you fail to abide by the conditions put forward by the court, on basis of which the bail has been granted, the court may direct your arrest.

 

Can an anticipatory bail be cancelled?

There is no specific provision for cancellation of bail, but a bail can be cancelled by the High Court based on certain grounds to meet the ends of justice.

 

A request for cancellation of the anticipatory bail can also be made by the opposite party or the police, in case you violate any of the directions imposed by the Court.

 

This article is written by Mr. Parameshwar Bambulge, an Advocate and practising advocate having an experience of 11+ years in handling different legal matters. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .

For more queries contact:

Mr. Parameshwar Bambulge

Advocate

Bidar-585401

parameshwarbambulge@gmail.com

Mob: +91 92422 21005

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