Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. Section 438 of Criminal Procedure Code deals with anticipatory bill. According to this section, when any person has reason to believe that he may be arrested on account of a charge of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction for release on bail before arrest, if the Court of Law in which the appeal has been made thinks fit. When the High Court or the Court of Sessions makes a direction under sub-section (1), it includes certain conditions that need to be adhered to in the light of the facts of the particular case. These conditions include the person should be available for interrogation by a police officer as and when required; the person shall not, directly or indirectly, pay bribe, threaten or promise to any person familiar with the facts of the case and persuade him from disclosing such facts to the Court or to any police officer; the person is not allowed leave the territory of India without the prior consent of the Court. Besides these there are other conditions under which a person convicted of cognizable offence can seek bail are: if a person who has been released on anticipatory bail is subsequently arrested without warrant by an officer-in-charge of a police station on same charges, and if the warrant is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, that person shall be released on bail. If a Magistrate taking cognizance of such offence decides that a warrant should be issue in the first instance against that person, he shall issue a bailable warrant in agreement with the direction of the Court. It should be noted that where the High Court or Court of Sessions has not passed any provisional order under this section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the charges held in such application. Furthermore, the anticipatory bail cannot be granted after a Magistrate has issued warrant. The presence of the applicant in quest of anticipatory bail is necessary at the time of final hearing of the application and passing of final order by the Court, if the application for anticipatory bill is made by the Public Prosecutor, the Court considers the presence of the applicant essential for the sake of justice. Anticipatory bail is a temporary bail, which is for a limited period. On expiry of the duration of the bail, the court that has granted anticipatory bail should leave the matter to the higher court or a regular court to deal with the matter and the police-officer-in charge of the case should submit the charge sheet as well as the investigation report before the court. An anticipatory bail is not granted in all cases as a matter of course and the court can exercise its power of granting such bail only in exceptional cases. Furthermore, while considering an application for granting anticipatory bail, a stability has to be maintained and two factors, namely, no injustice is caused to the free and full investigation and there should be prevention of harassment and unjustified detention of the accused should be maintained. One thing should be kept in mind that Anticipatory bail is not a right that has been conferred by any law of the land. It cannot be granted as a right to the accused. The person who is seeking anticipatory bail can approach the High Court if his application is rejected by the Sessions Court but he cannot re-apply it in the Sessions Court if his application is rejected by the High Court. For cases that are filed under Section 498A of the Indian Penal Code, wherein, the offence is a non-bailable, cognizable and non-compoundable offence, in most cases anticipatory bail is rejected.
