At What Stage Anticipatory Bail Is Filed

Section 438 of Cr. P.C. deals primarily with pre-arrest bail for non-bailable offenses. A person apprehended for arrest can apply to the Court of Session or the High Court for a bail order. The power to grant anticipatory bail is beyond the jurisdiction of the lower courts. Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005, addresses the following factors that the court considers before granting anticipatory bail:

• The nature and gravity of the accusations.
• The charge against the applicant is intended to harm or humiliate him by putting him in custody.
• The applicant's history, including whether he has ever been imprisoned or sentenced by a court for a cognizable offense.
• The applicant's potential for defying justice.

If the High Court or Court of Session does not issue an interim order or rejects the application for anticipatory relief, an officer in charge of a police station may arrest the applicant without a warrant based on the charge included in the application. When a court issues an interim order, the applicant is required to give the public prosecutor a seven-day notice, and the application is only approved or denied after it is addressed.

Section 438(1B) requires the applicant for anticipatory bail to present when the court adjudicates the case and holds a final hearing on the application or issues a final order. If the court determines that such attendance is required in the interest of justice based on the public prosecutor's plea, the applicant must appear in court.

Section 439 CrPC provides for the cancellation of anticipatory bail.

Section 439 addresses the High Court or Court of Session's extraordinary bail powers. A High Court or Court of Session has the authority to order the arrest and detention of any person granted bail under Section 439(2). A High Court or Court of Session can order—

• If the nature of the offense is specified in Section 437(3), any accused person in custody must be released on bail, or the court may impose any condition necessary for the purposes listed in that subsection.
• Any restriction imposed by a magistrate on a person's release on bail may be lifted or changed provided that the High Court or Court of Session notifies the Before releasing an accused on bail who can only be tried by the Court of Session, the Public Prosecutor examines the application and provides written notice of the reasons for doing so.

At what stage anticipatory bail is filed

• Sushila Aggarwal vs State (Nct Of Delhi), 2020, the Court held that there is nothing in the CrPC indicating that anticipatory bail should be time-limited. However, under the CrPC, the Court has the discretion to decide on a case-by-case basis (depending on the stage at which the Bail application has progressed or the presence of any unusual circumstances necessitating a time limit) and impose a time limit while granting pre-arrest bail.

A person may apply for anticipatory bail before the FIR (First Information Report) if the facts indicate a substantial reason for the arrest. The Superior Court has appellate jurisdiction to review the correctness of the granted Bail at the request of the investigating agency or the State. The Court ruled that "when Parliament has not considered it appropriate to limit citizens' rights and the power of courts to grant anticipatory bail, then it is not in the larger societal interest to limit such powers and limit citizens' liberty." Citizens' rights, rather than restrictions, are fundamental.

• Saubhagya Bhagat v. State of Uttarakhand & Anr., 2022, An Uttarakhand High Court bench consisting of Chief Justice Vipin Sanghi, Justice Manoj Kumar Tiwari, and Justice Ravindra Maithani has decided whether a person's anticipatory bail application can be entertained after the chargesheet is filed. Chief Justice Vipin Sanghi and Justice Manoj Kumar Tiwari ruled with a 2:1 majority that the legislature had not imposed any restrictions on the stage where an application for anticipatory bail can be heard.

It has been observed that a person's liberty is his most prized possession, which is curtailed in the case of arrest by police as well as remand to custody by the Magistrate/Court, implying that the effect of arrest or remand is the same, namely, curtailment of liberty. The Court also stated that a person's reputation is harmed in both situations, as society sees no difference between arrest and remand. It was observed that Section 438 CrPC makes no distinction between police arrest and court remand. In light of this, it was decided that an application for anticipatory bail could be maintained even after the charge sheet was filed in court.

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