Anticipatory bail and regular bail are legal provisions available to individuals facing possible arrest or criminal accusations. Knowing your options can make all the difference. Although both are intended to safeguard a same common personal freedom, they are dissimilar in terms of implementation, time and law. What is Regular Bail? Ordinary bail or simply ‘Regular’ bail Under the criminal procedure law (CrPC) an offender who is arrested and in custody of police has got a legal right to secure a temporary freedom, known as regular Bail. This is specified in Sections 436 to 450 of the CrPC. When can Regular bail be given? Ordinary bail can be applied in the below cases: For Non-Bailable Offenses: Bail is the right of accused as per Section 436 of the CrPC, in such crimes which are punishable with less than three years punishment of by nature a bailable offense. The accused should be released upon furnishing a bond with or without sureties. For Non-Bailable Offense : According to Section 437 of the CrPC, bail for non-bailable offense is a matter of discretion. The court takes in to account the nature and seriousness of the offense, strength of evidence, special circumstances relating to the accused and probability that he will abscond. Conditions for Granting Regular Bail Regular bail is usually granted by courts considering a few factors: The charge against the accused is also of importance. Courts consider whether there is reasonable cause to hold that the suspect has committed a non bailable offense, but does not need the certainty of being guilty as in the case of conviction. The nature, circumstances, extent of the offence and other factors assessing flight risk are considered. The previous criminal record, if any, is taken into account to see the probability of recidivism. The courts will also consider if the accused represents any danger to the witnesses or investigation. The danger of tampering with evidence or potential witness interference is a significant factor. What is Anticipatory Bail? Bail in anticipation of arrest or anticipatory bail is a distinct provision in the bail mechanism under Section 438 of the CrPC, by which a person can seek bail even before he is taken to custody. The text of this provision is premised upon the understanding that arrest independent of prosecution may be humiliating,4and traumatizing, and affords safeguards to those believing that they might be falsely implicated or wrongfully arrested. Legal Framework of Anticipatory Bail Under section 438 of the CrPC (Code of Criminal Procedure), a person has to satisfy the Sessions Court or High Court that they may be arrested in a non-bailable offense and that there are reasons which do not constitute sufficient grounds for arrest. This section embodies the principle that personal liberty is valuable and is to be safeguarded against arbitrary arrest. In When You Should File for AB? Applications of anticipatory bail is advisable under 2 situations: You have reliable information or you reasonably suspect that you are being arrested in a non-bailable offense. This may be due to complaints that are in the pipeline, investigations that have begun or threats of hearsay allegation. There are a lot of cases in which allegations are so absurd, and contrary to the facts; surprisingly such type of complaints are filed against innocent persons for vindicating such nefarious intent of accused involved in matrimonial disputes, family property/ business dispute wherein blackmailing by filing criminal Complaints takes place. You are likely to get arrested out of political vendetta, competition in business or due to personal rivalry when misuse of law also is seen as harassment. Conditions Imposed with Anticipatory Bail While granting AB, courts generally put in several conditions to ensure proper conduct of investigation and trial: The applicant shall co-operate with the investigation and he shall make himself available for interrogation whenever the investigating officer requires him to do so. Accused are directed by the courts to join investigation on fixed dates and timings. The defendant can be ordered not to leave the country without the court’s permission, and might also have to surrender their passport. A common term is that the accused must not threaten, harass, or communicate with witnesses and evidence tampering is also prohibited. Courts can also put conditions stipulating accused to visit police station at regular intervals or provide contact information, including address residency and mobile number. Differences Between the Regular Bail and Anticipatory Bail Timing of Application But the most basic distinction is about timing. Normal bail is applied after the individual has been arrested and in custody, while anticipatory bail is sought prior to arrest with the expectation that they may be detained. Jurisdiction and Authority Normal bail applications can be made in the Magistrate, the Sessions or High Court depending upon the stage of a case. Anticipatory bail may only be granted by Sessions Court or HC under Section 438 of CrPC. Nature of Protection Bail is regular release from the actual custody and not arrest. When an anticipatory bail is allowed, the person cannot be held beyond a particular period as provided in the order and if arrested, he must be released on bail. Burden of Proof In standard bail cases, a defendant bears the burden to show that they should be released from jail. In anticipatory bail, an applicant must show that he has some kinds of ”facial reasons” to panicking for his arrest and it may be groundless or motivated. Duration and Continuity Bail required under the General Rule remains in force until the end of the trial unless it is surrendered or changed. The anticipatory bail will be for a period of time or until the investigation, trial or appeal is over as the case may be. Grounds for Seeking Anticipatory Bail Anticipatory Bail Several situations arise where one should apply for anticipatory bail: Important Supreme Court Judgments There are some leading judgments that have developed law with respect to bail in India : In Sushila Aggarwal v. State (NCT of Delhi) (2020), the Supreme Court held that there can be no restriction with regard to time for an order directing anticipatory bail and it may continue till the chargesheet is filed, ensuring full protection to the accused during trial. The Arnesh Kumar v. State of Bihar (2014) was a historic judgment that..
