Laws of Anticipatory Bail in India

In the year 1969, the 41st Law Commission of India made a recommendation that theory of Anticipatory Bail should be included in the Code and thus on their recommendation in the New Code of the year 1973 a new section pertaining to the same was introduced.
The main premise on which this suggestion was based was that many a times a person is implicated to an offence falsely and such person is not likely to abscond and hence he should be released on Anticipatory Bail.
The Commission recommended that such authority to grant Anticipatory Bail be with the High Court and Sessions Court only.

Provisions of Anticipatory Bail are governed by Section 438 of the Criminal Procedure Code.
The section says that if a person has reason to believe that he may be arrested for an offence which is non-bailable he can approach the High Court or the Sessions Court to grant him a bail if he gets arrested.
After evaluating the evidence, accusation and averments available on record the Court may grant an Interim Bail and issue a notice to the public prosecutor
The concerned Court upon receiving an application for anticipatory bail will cause to serve upon the Police and the Public Prosecutor a Notice not being less than seven days, with the intention of hearing the side of prosecution.
The Court which grants a Anticipatory Bail also has the power to cancel it, on grounds that it has found some new evidence, material or circumstance against the accused.

The Primary difference between Bail and Anticipatory Bail is that the former is given after arrest of an accused person whereas the latter is given before the arrest of such person.
The provisions of Bail are governed by Section Section(s) 436, 437 and 439 of the Criminal Procedure Code, 1973 (CrPC), whereas Section 438 of the CrPC sheds light on the provisions and rule regarding the Anticipatory Bail.

To apply for an Anticipatory Bail does not require any FIR on the part of the Police administration, a person who has reason to believe that he might be arrested can apply for it.

There is no limit or time period attached with an order of Anticipatory Bail, however while allowing such Bail Application the Court places some conditions before the accused persons like, they will not try to contact the witness or they would not leave the country etc.
In the case between Siddharam Mhetre Vs. State of Maharashtra, the Supreme Court of India held that there cannot be a period for which a anticipatory bail can be granted it will remain in existence till the end of trial.
However, in the case between Sushila Aggarwal Vs. State of NCT, Delhi the Supreme Court held that “An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest.”

In an earlier ruling, the Supreme Court had held that the Court cannot impose any restrictive condition while granting anticipatory bail to an accused person, however in a matter between Sushila Aggarwal Vs. State of NCT, Delhi the Supreme Court overruled its own decision stating that “The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases”

Yes, if the Court finds out any new evidence, proof, submission which was not earlier available at the time of grant of Anticipatory Bail, then such Court can cancel such Bail orders and send such accused person to Jail.

Section 18 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not permit the application of Section 438 of the Code, in circumstances in which a person has committed an offence under the SC/ST Act, 1989.

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