How Long Is Anticipatory Bail Valid?

Written by:

Adv Kanishk Garg

Updated: 10-04-2024

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A Bail could be understood as a legal guarantee by a person, accused of having committed an offence punishable by imprisonment, to participate in the investigation and face the trial before the court by being present before the police or the court whenever called.

Anticipatory Bail could be sought from the courts even before getting arrested. In Criminal cases, anticipatory bail is a kind of relief for an accused person, as one could apply for it even in anticipation of the arrest.

Anticipatory bail could be understood as when an individual has reason to believe that he could be arrested with an accusation of committing a non bailable offence, he has an option to apply to the Session’s Court or the High Court under Section 438 of The Code of Criminal Procedure (CrPC); for such direction that he could be released on bail in the event of an arrest.

Where can one apply for Anticipatory Bail ?

The High Courts and the Court of Sessions have been empowered to grant anticipatory bails in the event of arrest. The applicant, in most cases, would first have to approach the Court of Sessions to apply for an Anticipatory Bail unless there are such circumstances, where he may approach the High Court directly.

The accused is free to apply to any such Court under whose jurisdiction there is an apprehension of the arrest being made. Even if the offence has been committed outside the jurisdiction of such court and the respective does not have territorial jurisdiction over such matter, it may still grant anticipatory bail for a short period with appropriate safeguards, so that the accused could approach the court having such jurisdiction.

Circumstances Under Which An Anticipatory Bail Could Be Granted

Anticipatory bail could granted in situations, some of which have been explained here under-

Anticipatory Bail could be granted where an exceptional case has been made out in the favour of the applicant and it seems that he or she could be arrested on baseless grounds.
The court has reason to believe that the accusations against the applicant were made with an unscrupulous motive or with such objective of causing an injury or humiliation to the applicant by having him arrested.
The Court may grant anticipatory bail if it believes that the allegations against the accused are vague or indeterminate in nature.
The applicant could also be granted anticipatory bail if he proves to the Court that he hails from a reputable family which has deep roots in the society and that he will not try to abscond or escape from the Court procedure.

Conditions to Grant Anticipatory Bail

When allowing an anticipatory bail, the Sessions Court or the High Court could impose conditions which have been laid down in-

Section 438(2)- The High Court or the Court of Session could impose some conditions when allowing an Anticipatory Bail, these are-

The person should be present for investigation or interrogation, whenever required by the investigating police officer.
The Applicant shall never directly or indirectly threaten, persuade or otherwise convince any such person who is aware of the details of the case, from disclosing such facts to the Court or Investigating officer.
The accused must not leave the country without seeking permission from the Court.
The Court could impose other condition which are imposed under Section 437(3).

For how long would an Anticipatory Bail remain as valid ?

Five-Judge Constitution Bench headed by Justice Arun Mishra, including Justices Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, opined that protection granted to an accused under Section 438 of the CrPC shall not be limited to a fixed period of time.

Normal conditions which have been provided under Section 437(3) read with Section 438(2) must be imposed; in case specific facts or features are there related to any offence, the Court has the power to impose any such condition it feels to be appropriate for the respective case.

It has to be understood that an anticipatory bail would not expire automatically when the court has summoned the accused or when when charges are framed against him or her, but an anticipatory bail shall remain valid till the end of the trial.

In the case of Sushila Aggarwal v State of NCT of Delhi (2020), it was held that the Court limit the tenure of the Anticipatory Bail, if it deems it necessary to do so based on the special circumstances of the case.

Relevant Case laws regarding Anticipatory Bail –

Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab (1980)–

The Apex Court provided certain conditions to be fulfilled when granting anticipatory bail-

The Court held that the power under Section 438 is special in nature and must be exercised only in special cases.
The anticipatory bail granted would not provide protection to any of the offences which have not been committed till the bail was granted, or no accusation which had been made till the time the accused applied for the bail.
The powers mentioned under Section 438 are not unguided but are subjected to limitations which have been mentioned under Section 437.
This section will not be applied, in case there may be a chance of collecting incriminating evidence from the accused, or any such necessary information about related evidence under Section 27 of the Evidence Act. In such a situation, the remand of the accused under Section 167(2) is necessary
For offences which are punishable with death or for offences punishable by life imprisonment, anticipatory bail could not be granted, unless the Court is satisfied that the charges do appear to be groundless.
For economic cases or cheating cases, no anticipatory bail shall be granted.
In re Digendra Sarkar (1982) – The Court held that one may apply for anticipatory bail even if no FIR has been registered or even if no case has been filed for the commission of a non-bailable offence. Thus, in short, a person having a reason to believe that he could be arrested for an accusation of a non-bailable offence, could apply for anticipatory bail.
Sushila Aggarwal v. State of NCT of Delhi, (2020) – A Bench of five Judges, unanimously decided that the protection provided under Section 438 of the CrPC shall not be limited for a fixed time only, in case of a certain kind of offence, the Court, if it finds it necessary may grant anticipatory bail with certain conditions or tie it to an event, however, the duration of an anticipatory bail order would not end up immediately if the accused is summoned by the court or if charges have been framed, but could be continued till the end of the trial. Also, if there are certain special conditions where it is necessary to apply limits to the anticipatory bail, the Court could do so as well.

Sharks of Law offers you experienced lawyers dealing with both civil as well as criminal matters, who could offer you necessary legal counsel as required on the basis of the facts of your cases. Renowned criminal lawyers such as Adv. Aditya Deshwal, Adv Shifa could help you apply for anticipatory bail or for any other issue related to criminal law.