When bail may be taken in case of non bailable offence it is called an Anticipatory Bail. When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail
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THE ANTICIPATORY BAIL

(i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
Provided that the Court may direct that a person referred to in clause (1) of clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary,-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond
executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is
accused or of the commission of which he is suspected, or
(c) otherwise in the interests of Justice.
(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons, for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgement delivered.
CASE LAW
Guiding factors for granting or refusing bail. MR 1979 SC 1360 = M9 Cr LJ 1036 = i 984 (3) SCC 555 = 1984 Cr. LJ 1211.
STATE AMENDMENT
Punjab -In Sec. 437, after sub-sec. (7), the following sub-sec (8) shall be added, namely --
"(8) Before releasing the accused on bail under sub-section (1) or sub-section (2), the Court shall give the prosecution a reasonable opportunity to show cause against such release." Punj: Act 22 of 1983, w.e.f. 27-6-1983.
Union Territory of Chandigarh - Same as in Punjab.
438. Direction for grant of bail to person apprehending arrest:---(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and
when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were
granted under that section.
(2) If such person is thereafter arrested without warrant by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to
give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a
warrant should be issued in the first instance against that person, he shall issue a bailable warrant in
confirmity with the direction of the Court under sub-section (1).
STATE AMENDMENTS
Maharashtra:- Substitute the following section for section 438:-
"438 Direction for grant of bail to person apprehending arrest:-- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of sessions for a direction under this section that in the event of such arrest, he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors:-
(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court,
previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the of the applicant by
having him so arrested, and
(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice;
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or as the case may be, the Court of Sessions, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1) the Court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-
(i) that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person
acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to
the Court or to any police officer;
(iii) that the applicant shall not leave India without the previous permission of the Court; and
(iv) such other condition as may be imposed under sub- section (3) of Section 437 as if the bail was
granted under that section.
(3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(4) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of Justice.
(5) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1)" Maharashtra Act XXIV of 1993.
Orissa the following proviso after sub-section (I):-
"Provided that where the apprehended accusation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case". Orissa Act 11 of 1988, w.e.f 22-7-1988.
Uttar Pradesh :- Section 438 shall be omitted. - U.P. Act 16 of 1976, w.e.f. 1-5-1976.
West Bengal :- Substitute the following, for sub-section. (I):-
"(1) (a) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on bail:
Provided that the mere fact that a person has applied to the High Court or the Court of sessions for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer in charge of a police station.
(b) The High Court or the Court of Sessions, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application:
Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days' notice to present its case.
(c) If any person is arrested and detained in custody by an officer in charge of a police station before the disposal of the application of such person for a direction under " sub-section, the release of such person on bail by a Court having jurisdiction pending such be subject to the provision of section 437.
(IA) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgement, decree or any Court, Tribunal or other Authority." W.B. Act 25 of 1990.
439. Special powers of High Court or Court of Sessions regarding bail: (1) A High Court or Court of Sessions may direct,-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the
nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for
the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.
STATE AMENDMENTS
Punjab:- After sec. 439 the following shall be inserted, namely,-
"439 A. Notwithstanding anything contained in this Code, no person-
(a) who, being accused or suspected of committing an offence under any of the following sections namely – Sections 120-B, 121, 121-A, 122, 123, 134-A, 153-A, 302, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3,4,5 and 6 of the Explosive Substances Act, 1908, and Sections 25,26,27,28,29,30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a Court;
OR
(b) who, having any reason to believe that he may be arrested on accusation of committing an offence as specified in Clause (a), has applied to the High Court or the Court of Session for a direction for his release on bail in the event of his arrest, shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds, namely:-
(i) that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in Clause (a);
(ii) that such person is under the age of sixteen years or a woman or a sick or an infirm person;
(iii) that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail". Punjab Act, 22 of 1983, w.e.f 27-6-1993.
Union Territory of Chandigarh .- Same as in Punjab.
Tripura :-- Insert Section 439A, after Section 439.
"439A. Power to grant bail :- Notwithstanding anything contained in this Code, no person-
(a) who being accused of or suspected of committing an offence under Sections 120B, 121, 121A, 122, 123, l24A, 153A, 302, 303, 304, 307, 326, 333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 387, 392, 394, 395, 396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code 1860 (45 of 1860) or Sections 25, 26, 27, and 28 of the Arms Act, 1959 (54 of 1959) or Sections 3, 4, 5 and 6 of the Explosives Substances Act, 1908 (VI of 1908), is arrested or appears or is brought before a Court;
OR
(b) who having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a) has applied to the High Court or Court of Sessions for a direction for his release on bail in the event of his arrest,
shall be released on bail or, as the case may be, directed to be released on bait except on one or more of the following grounds namely-
(i) that the Court including the High Court or the Court of Sessions, for reasons to be recorded in writing, is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);
(ii) that such person is under the age of sixteen years or any woman or any sick or infirm person;
(iii) that the Court including the High Court or the Court of Session, for reasons to be recorded in writing, is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail." Punjab Act 22 of 1983, w.e.f 27-6-1983.
Union Territory of Chandigarh:- Same as in Punjab.
Tripura: Insert Section 439A, after Section 439.
"439A. Power to grant bail:- Notwithstanding anything contained in this Code, no person-
(a) who, being accused of or suspended of committing an officer under sections 120B, 121, 121A, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 392, 394, 395, 396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code 1860 (45 of 1860) or sections 25,26,27 and 28 of the Arms Act, 1959 (54 of 1959) or sections 3,4,5 and 6 of the Explosives Substances Act, 1908 (VI of 1908), is arrested or appears or is brought before a Court;
OR
(b) who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a) has applied to the High Court or Court of Sessions for a direction for his release on bail in the event of his arrest,
shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds namely-
(i) that the Court including the High Court or the Court of Sessions, for reasons to be recorded in
writing, is satisfied that there are reasonable grounds for believing that such person is not guilty of any
offence specified in clause (a);
(ii) that such person is under the age of sixteen years or any woman or any sick or infirm person;
(iii) that the Court including the High Court or the Court of Session, for reasons to be recorded in
writing, is satisfied that there are exceptional and sufficient grounds to release or direct the release of the
accused on bail." Tripura Act 6 of 1992, w.e.f. 29-7-1992.




 
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