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Bail, in law, is a term that signifies temporary or transitional emancipation of a person who is accused in any criminal matter wherein the court is yet to pronounce the judgment. In other words, “bail” is the release of an accused person from jail on his yielding security that would guarantee his presence before the court or any other legal authority as and when required. The term “BAIL” has been deduced from the French word “bailer” which means “to deliver” or “to give”. The term bail has not been defined anywhere in any law book. However, Section 2(a) of the Criminal Procedure Code, 1973 encloses the definition of ‘bailable offense’ as well as ‘non-bailable offense’, and the provisions concerning bails are mentioned from Section 436 to Section 450 of the same Code.

Types of bail in India

There are three types of bail in India-

Regular bail:
When a person commits a cognizable non-bailable offense (offenses which are so grave that a police officer can arrest the accused without a warrant or start the investigation without the permission of a court), the police can take him under custody and after the custody, period expires he must be sent to jail. Section 437 and 439 of the Cr. P.C gives the accused the right to be released from such custody. So, regular bail is basically the release of an accused from custody to ensure his presence at the trial.

Interim bail:
This bail is granted as a temporary means and granted for a short period of time, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court. Interim bail is always conditional and can be extended, but if it expires before the accused has been granted an anticipatory bail or regular bail and fails to pay the amount required for continuing the bail, then he loses his right of freedom and will be taken under custody.

Anticipatory bail :
Anticipatory bail is self-defining. It is a type of bail that is given to someone who is in anticipation of getting arrested for a non-bailable offense by the police. This is a very essential bail in recent times because business rivals and other influential people often try to frame their opponents in false cases. This is an advanced bail mentioned under Section 438 of the Act. A person who has been granted anticipatory bail cannot be arrested by the police.

When to file to take an Anticipatory Bail:-

As soon as possible after the pre-litigation mediation fails in the CAW cell or when the F.I.R is registered against you in the Police Station.

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

  1. When no FIR has been filed:
    • In such a situation, there will be no grounds for granting bail.
    • Your lawyer must request the court to grant you a pre-arrest notice instead.
    • 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.
  2. When an FIR has been filed:
    • The investigating officer will send you a notice of arrest 7 days before arresting you.
    • In this time period, you can file for anticipatory bail.

Once the FIR under section. 498a/406 is registered it is a better option to take anticipatory bail in the offenses as read in the FIR. I have already discussed the chances of anticipatory bail U/s. 498a and 406 in my previous article of chances of getting anticipatory bail in 498a But when you move for anticipatory bail in the court may impose certain conditions like depositing a demand draft of a certain amount in the name of wife and the complainant as a part of maintenance. Now, these conditions are ultra-vires to the provisions of section 125 CrPC and these types of orders can be challenged in higher courts. When a specific provision is there for maintenance of wife and child such conditional anticipatory bail in 498a is against the law.

Get an Anticipatory Bail: If you think your wife may file an FIR under Section 498A, hire a criminal defense lawyer and get an anticipatory bail to prevent yourself or your family member’s arrest. Anticipatory bail is like a precautionary bail in case police move ahead to arrest you or your family members. You can file for anticipatory bail for protection against section 498a IPC case under Section 438 of CrPC.

Ambit and scope of anticipatory bail

Section 438 empowers a High Court and a Court of Session to grant anticipatory bail. It is not as if bail is presently granted by the Court in anticipation of arrest. But it means that in the event of arrest, a person shall be enlarged on bail.

This power is extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or Otherwise misuse his liberty while on bail” that such power can properly be exercised.

This power being rather unusual in nature is entrusted only to the higher echelons of judicial service, namely a Court of Session and a High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offense and there is no limitation as to the category of non-bailable offense in respect of which the power can be exercised by the appropriate court.

For how long is my anticipatory bail valid?

Once you get an anticipatory bail, it normally remains valid till the Chargesheet is filed in the Court by the Police official after that you need to file a the Regular Bail.

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.

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 the appropriate district 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.

What is 41-A Cr.P.C Notice?

41A. Notice of appearance before a police officer.-: (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.


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