How does a Court decide whether to grant anticipatory bail?

  The Supreme Court of India recently stated that the nature and gravity of an offence has to be considered while granting anticipatory bail.

What is anticipatory bail?

Anticipatory bail is a court order to release someone on bail, issued even before the person is arrested. When someone anticipates that they may be arrested for a non-bailable offense, they can apply for anticipatory bail.

So, if someone believes that the police may arrest them for a non-bailable crime, they have the option to apply to the concerned High Court or District Court to pass an order directing that if they are arrested, they will be released on bail. 

Are there specific conditions to qualify for an anticipatory bail?

The offence should be non-bailable. There should be a grave apprehension that the accused will be arrested by the police authorities.

Can the Court impose conditions for granting anticipatory bail?

Yes. The Court can include conditions for granting anticipatory bail keeping in mind the facts of the particular case. This includes conditions like: 

• The person should present themselves for interrogation by the police whenever required.
• The person should not (directly or indirectly) threaten or bribe any person familiar with the facts of the case to discourage them from disclosing such facts to the police or the Court.
• The person should not leave India without the Court’s permission.

Further, to get bail, the person must deposit some money with the Court as security to guarantee their presence in Court when required. This is called the bail bond. The Court asks for a bail bond to ensure that the person does not flee at any time during the trial process.

If the person cannot afford to pay the bail bond amount, the Court has the power to reduce the amount depending upon the circumstances of their case. It is the Court’s power to decide on the amount and the person cannot demand the reduction of the amount as their right.

Are there some offences for which a person cannot apply for anticipatory bail?

Yes. Anticipatory bail is not applicable if a person is arrested for: 

• Rape of a woman under sixteen years; or
• Gang rape of a woman under sixteen years.

Can the Court cancel bail?

Yes. The Court can cancel bail if it feels the person is intimidating, bribing or tampering with the witnesses, or trying to flee, etc.

To know more about bail, read our explainer.