Basic Understanding of Anticipatory Bail

Key Aspects of Anticipatory Bail under BNS

• Purpose: Anticipatory bail is meant to prevent arrest in cases where the accused believes there is a genuine risk of wrongful arrest. It ensures that individuals are not arrested without due cause and allows them to be free pending a trial or investigation.
• Eligibility: Any individual who fears arrest for a non-bailable offense can apply for anticipatory bail. Courts generally grant anticipatory bail based on various factors such as:
  • Merits of the case: The seriousness of the alleged offense.
  • Criminal history: The criminal background of the accused.
  • Risk of absconding: The likelihood that the accused might flee or tamper with evidence.
• Conditions for Granting Bail: The court may impose certain conditions when granting anticipatory bail, such as:
  • Regularly attending hearings.
  • Not leaving the jurisdiction without court permission.
  • Cooperation with the investigation process.
• Legal Safeguard: This provision ensures that an individual is not subjected to wrongful detention unless a court has issued a valid order. It upholds the principle of “bail over jail,” prioritizing the protection of personal liberty.
• Protection Against Misuse of the Law: Anticipatory bail protects against false accusations and the misuse of the law by individuals attempting to settle personal scores or retaliate against the accused.

The Anticipatory Bail Is Operative:

Anticipatory bail can be applied by the accused when a summons has been issued for their appearance in court.

However, anticipatory bail cannot be granted if an individual commits an act that may be interpreted as a crime, even if the individual is exercising their legal rights.

In regular bail cases, bail is granted after the arrest has taken place. On the other hand, anticipatory bail is granted when an individual anticipates the possibility of arrest.

Eligibility for Anticipatory Bail:

An individual who anticipates arrest for a non-bailable offense can apply for anticipatory bail. If an individual believes there is a possibility of being falsely implicated in a case, or if their reputation is at risk, they may approach the High Court or Court of Sessions to seek anticipatory bail under Section 193 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

However, anticipatory bail will not be granted to an absconder or proclaimed offender under Section 85 of the BNSS. These individuals are deemed to be absconding or evading the investigation process, which makes them ineligible for anticipatory bail.

In the case of State v. Pradeep Sharma, the Supreme Court held that anticipatory bail cannot be granted to a person against whom a warrant has been issued and who is absconding to avoid the execution of that warrant. Such a person is categorized as a proclaimed offender under Section 85 of the BNSS.

Conditions for Obtaining Anticipatory Bail:

Section 193(2) of the BNSS outlines specific conditions that must be fulfilled when granting anticipatory bail. The High Court or the Court of Sessions can impose these conditions, along with any other conditions they deem fit based on the case’s specifics.

Conditions for Granting Anticipatory Bail:

• The applicant must present themselves for the investigation process as directed by the police or the court.
• The applicant is prohibited from leaving the country without the court’s prior permission.
• The applicant must provide their residential and native addresses, as well as their contact information, to the concerned police station.
• The applicant must not attempt to influence, threaten, or make promises to any individual who is acquainted with the facts of the case.
• While granting anticipatory bail, the court may not impose a condition that restricts the release of the applicant for a specific period after arrest. If such a condition is imposed, it would prevent the applicant from seeking regular bail under Section 190 of the BNSS.

Regular bail is granted after an individual has been arrested. Section 193 does not override Section 192 of the BNSS. Therefore, the powers of the High Court or Court of Sessions in granting anticipatory bail are limited by the provisions laid out in the BNSS.