The term ‘Bail’, defined in a layman’s language, means the system in which the accused person is released from the police custody on payment of a certain sum as surety. While the bail is a matter of right which is available to every accused person in case he commits a bailable offence such as defamation (Section 500 IPC) or criminal intimidation (Section 506 IPC) , the same is a matter of discretion in case of the accused who commits a non bailable offence such as murder (Section 302 IPC), dowry death (Section 304B IPC), etc. However, for filing an application for bail, it is not necessary that the person must be accused of committing an offence only under the IPC. What is required is that the offence must be a non bailable offence. It is a trite law that the law favours the allowance of bail and the refusal of bail must only be in exceptional cases
Bail and Anticipatory Bail: Meaning
A bail may be defined as a written agreement between the person accused of an offence and the Court to the effect that the accused person would be released from custody in return of an undertaking from the accused person that he will appear in the court as and when called upon by the Court to do so. The accused person undertakes to assist and co-operate with the investigating agencies as and when required. The bail application are filed before the Hon’ble Judicial Magistrate’s Court under Section 436 of Code of Criminal Procedure, 1973 in case of offences other than non bailable offences and Section 437 of the Code of Criminal Procedure, 1973 in case of non bailable offences. If the bail application is rejected by the Magistrate’s court, the accused person has the option to approach the Sessions Court, the High Court and then the Supreme Court.
As state above, bail is a matter of discretion to be exercised by the police or the court in a non arbitrary manner. Various considerations are to be borne by the concerned authority while granting the bail such as the gravity of the offence committed by the accused person, the antecedents, the probability of absconding, the danger of the witnesses being tampered with, etc.
An anticipatory bail is a bail which is granted to a person even before that person is arrested. It is an application for bail which is made by the person who anticipates his arrest by the police or by the Magistrate. The purpose of granting anticipatory bail to a person is to save him from the harassment that may be faced by him on being implicated in a false case at the behest of some rival. It may also be granted in those cases where the Court is of the opinion that no useful purpose would be served if the accused person first remains in prison and then apply for the bail.
As per Section 438(1) of the Code of Criminal Procedure, the application for anticipatory bail may be made either to the Sessions Court or to the High Court under Section 438 of the Code of Criminal Procedure, 1973. If an application for anticipatory bail is rejected by the Sessions Court, the applicant still have the remedy of approaching the High Court by way of fresh application as there is no bar on obtaining the remedy. The anticipatory bail can be granted only upon a reasonable belief on the part of the applicant that he may be arrested on the accusation of committing a non bailable offence levied against him. The approval or the rejection of the application for anticipatory bail depends upon the discretion of the Sessions Court or the High Court. The Session Court or the High Court may refuse to grant the anticipatory bail for similar reasons as taken into consideration while granting bail under Section 437 of the Code of Criminal Procedure, 1973.
Distinction Between Regular Bail and Anticipatory Bail
The points of distinction between regular order of bail and anticipatory bail are discussed under the following sub heads:
- The time of granting the bail: The major difference between the regular order of bail and the anticipatory bail is in the time when the bail is granted. The applicant applies for regular bail after the arrest is made. It is applied in order to secure the release from the police custody. However, in case of anticipatory bail, the application for bail is made in anticipation of arrest and therefore, comes into force at the very moment of the arrest of the person.
- The Court which may grant the bail: The application for the grant of ordinary bail can be made before the officer incharge of the police station or the Hon’ble Court of the Magistrate. However, an application for the grant of anticipatory bail is to be made either to the Sessions Court or to the High Court.
- Bail in case of offences punishable with death or imprisonment for life: As per the provision of Section 437(1)(i), the application for bail shall not be granted by the court in case there are reasonable grounds to believe that the person accused is guilty of an offence punishable with death or imprisonment for life. However, no such bar operates in the matter of granting anticipatory bail. The anticipatory bail can be granted irrespective of the fact that the offence is punishable with death or imprisonment for life.
The difference between regular bail and anticipatory bail can be summed up by stating that while the former is a post arrest bail, the latter is a pre arrest bail. The regular bail is applied in order to be released from the custody of the police after the arrest has been made whereas the former is made in anticipation of arrest. However, both the bails are granted to the applicant upon the discretion of the Courts.
(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)
 Gudikanti Narasimhulu and others vs. Public Prosecutor, High Court of Andhra Pradesh., [(1978) 1 SCC 240].
 E. Joseph vs. Collector of Customs., 1982 Cri LJ 559 (Mad).
 Rao Harnarain Singh vs. State., 1958 Cri LJ 563.
 State vs. Captain Jagjit Singh., AIR 1962 SC 253.
 Puran Singh vs. Ajit Singh., 1985 Cri LJ 897 (P&H).
 Law Commission of India, Forty First Report on the Code of Criminal Procedure, 1898, September 1969, Para. 39.9.
 Jaggannath vs. State of Maharashtra., 1981 Cri LJ 1808 (Bom).
 Gurbaksh Singh Sibbia vs. State of Punjab., [(1980) 2 SCC 565].
 Ramsevak vs. State of MP., 1979 Cri LJ 1485 (MP).
 Gurbaksh Singh Sibbia vs. State of Punjab., (1980) 2 SCC 565.