Anticipatory Bail

A bail is a conditional release of a person in custody. There are mainly two objects laid down in case of grant of any bail. They are –
A) The assurance that the accuse will be present at any time of the inquiry or trial; and
B) Grant of personal liberty to the accused so that he can defend himself.

Any case or an offence can be of two types. Namely, Bailable Offences/cases and Non Bailable Offences/cases. In case of a Bailable offence… the person accused gets his bail as a matter of right. But in case of non bailable offences or cases, the bail is granted to the accused under the discretion of the Court. Non bailable offence does not really mean that there will be no grant of bail.

The above two are classified under General Bail. There is another called the Anticipatory Bail.

In the above two cases the Court / Magistrate orders for the release of the accused. But in case of an anticipatory bail, a direction (not an order) for the grant of bail to the person apprehending arrest is given.

According to the Criminal Procedural Code, 1973
“Where any person has a reason to believe that he may be arrested on accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Sessions for a direction under section 438 that in an event of such arrest, he shall be released on bail.”

Hence only the High Court and the Court of Sessions have the discretionary power u/s 438 to issue such a direction to any person apprehending arrest on accusation of having committed a non cognizable offence.