Anticipatory bail is a direction by a Sessions Court or High Court that, if a person is arrested for a non-bailable offence, they must be released on bail. It is sought before arrest by someone who reasonably believes they may be arrested. Under the BNSS it is governed by section 482, which corresponds to section 438 of the old CrPC.
Who can apply?
Any person who has reason to believe they may be arrested for a non-bailable offence. An FIR need not already have been registered, but the apprehension must be based on concrete facts rather than a vague fear.
Which court?
The application may be made to the Court of Session or the High Court. In practice it is usually filed first before the Sessions Court of the district concerned.
What does the court consider?
- The nature and seriousness of the accusation
- The applicant's antecedents
- The possibility of the applicant fleeing from justice
- Whether the accusation appears intended to injure or humiliate the applicant
Conditions
The court may impose conditions such as making oneself available for questioning, not contacting witnesses, and not leaving India without permission. Breach can lead to cancellation.
How long does protection last?
The Supreme Court held in Sushila Aggarwal v. State (NCT of Delhi) (2020) that anticipatory bail need not be limited to a fixed period and may continue until the end of the trial, unless the court imposes a limit or special circumstances require one.
Jurisdiction
This article describes central Indian law as it generally applies in Gujarat. Procedure, forms and court practice can differ between States and between courts, and the law changes. Check the current position for your matter.