Adv. Puneet Thakur and Associates
Anticipatory Bail in India
Anticipatory bail is a legal remedy under Section 438 of the Bharatiya Nyay Suraksha Sanhita (BNSS), 2023, allowing a person to seek pre-arrest protection. It safeguards an individual from potential arrest in non-bailable offenses by permitting them to approach the court for bail before being detained by the police.
Key Features of Anticipatory Bail
Purpose:
• To protect individuals from unnecessary harassment, humiliation, or unjustified arrest.
• To allow the accused to prepare their defense while out of custody.
Conditions for Granting Anticipatory Bail:
The court may impose specific conditions, such as:
​• Not leaving the country without permission.
• Cooperating with the investigation.
• Not tampering with evidence or influencing witnesses.
When Can It Be Filed?
• Anticipatory bail can be filed only if a person apprehends arrest in a non-bailable offense.
• It cannot be sought after the arrest has already occurred.
Where Can It Be Filed?
In the Sessions Court or High Court having jurisdiction over the case.
Duration of Anticipatory Bail:
Typically granted for a limited period or until the completion of the trial, depending on the court’s order.
Procedure for Filing an Anticipatory Bail Application
1.Draft an application under Section 438 of BNSS, explaining why bail should be granted.
2. Mention reasons for apprehension of arrest and details of the alleged offense.
3. Submit the application to the appropriate Sessions or High Court.
4. Attend the court hearing, where the prosecutor may present objections.
5. If granted, follow the conditions specified by the court.
Rights of an Applicant for Anticipatory Bail
In addition to BNSS and BSA, several special laws address specific crimes:
Right to apply for anticipatory bail irrespective of the stage of the investigation.
Right to legal representation
Protection from arrest if anticipatory bail is granted.
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Substantive Law• Substantive criminal law defines various offenses and prescribes punishments for each crime. • The primary legislation is the Bharatiya Nyay Sanhita (BNSS), 2023, which has replaced the Indian Penal Code (IPC). The BNSS categorizes crimes into various offenses such as: • Offenses against the State: Treason, sedition, etc. • Offenses against the Human Body: Murder, assault, kidnapping, etc. • Offenses against Property: Theft, robbery, criminal trespass, etc. • Offenses against Women: Rape, dowry harassment, domestic violence, etc. • Economic Offenses: Fraud, forgery, counterfeiting, etc.
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Procedural Law• Procedural law lays down the rules and processes for investigating crimes, filing cases, conducting trials, and executing sentences. • Key procedural laws in India include: • Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC). • Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872, and governs the admissibility and evaluation of evidence.
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Punishments Under BNSS• Imprisonment (simple or rigorous). • Fines. • Forfeiture of property. • Death penalty (in rarest of rare cases).
