Anticipatory Bail

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Anticipatory Bail

Bail can be said to be superior to interim bail because the former is permanent unlike the latter. It is also superior to bail after arrest because unlike post-arrest bail, the accused does not have to spend even a single day in custody –until his case gets decided– if he gets an AB order in his favour. Indeed it may be argued that AB is the best legal relief for accused persons out of all types of bail. This applies to all criminal cases including dowry cases.

This bail is applied for in anticipation of arrest. If you have reason to believe that you may be arrested for a crime which you did not commit, then you have the right to apply for this type of bail. Such belief may come to your mind if you learn about a criminal complaint made to the police by your wife, or by any threats made by her family against you and your family (this second one should not always be taken seriously, but the first one should be).

As soon as you learn about the police complaint against you under section 498a/406/34, contact a good lawyer to apply for pre-arrest notice or notice bail, and anticipatory bail. These are two separate things but they are the same thing. Let me explain. Your lawyer will draft an anticipatory bail application mentioning your version of the facts of the case, and will apply at the appropriate district court. The matter will come up for hearing, and you should try to send somebody to be there with your lawyer when it comes up. The court will have sent a notice to the CAW cell or Mahila Thana or Women Cell, and their officer will appear on this date, along with a lawyer who represents the government, usually called a public prosecutor or a government pleader.

The public prosecutor will talk to the police officer, and he will tell the judge that since no FIR has been registered as yet, therefore there is no grounds for granting bail. The judge will seemingly agree with the PP, and will ask your lawyer what he has to say about this. Your lawyer will verbally withdraw the anticipatory bail application and will make an oral prayer for seven days' pre-arrest notice in case the police formulate an intention to arrest you or your family at some later date. The judge will grant this plea, and will pass an order telling the police to give you written notice seven days before they intend to arrest you, or your parents, or you and your parents separately. This is called notice bail commonly —however note that there is no definition of notice bail in the CrPC, nor any section of the CrPC which deals specifically with this type of relief.

If this bail application is rejected, then you can apply in the high court. If the High Court also rejects, then you can apply in the Supreme Court. Usually High Court grants this relief. You may have read somewhere that "bail is the rule, jail is the exception". What this means is that courts (read judges) have a bent of mind towards giving bail to all such accused who are not likely to be able to influence witnesses if set free during the pendency of their respective cases.

When the complaint is turned into an FIR, then the investigating officer will send you a notice of arrest. As soon as you get this notice, apply for anticipatory bail, following the same procedure which you used for notice bail. Note that both notice bail and AB are applied for u/s 438 of CrPC of India.