Anticipatory Bail in Delhi

What is anticipatory bail?

Anticipatory bail is a direction that, if a person is arrested in connection with a particular accusation, they shall be released on bail. It is sought before arrest by a person who has reason to believe that they may be arrested on an accusation of having committed a non-bailable offence.

Under the new criminal procedure code, the provision is Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to Section 438 of the Code of Criminal Procedure, 1973 (CrPC). The power is exercised by the Court of Session and the High Court.

Where is the application filed in Delhi?

Both the Sessions Court and the High Court have concurrent jurisdiction. In practice, an application is ordinarily moved first before the Sessions Court having jurisdiction over the police station where the FIR is registered (for example, the Sessions Courts at Tis Hazari, Patiala House, Saket, Rohini, Dwarka, Karkardooma or Rouse Avenue, depending on the district or the investigating agency). If it is dismissed, a fresh application may be filed before the Delhi High Court.

Anticipatory bail can be sought even where an FIR has not yet been registered, provided the apprehension of arrest is based on concrete facts rather than a vague fear.

Factors courts generally consider

Section 482 BNSS does not itself set out a list of factors, but courts generally look at considerations such as:

• the nature and gravity of the accusation and the role attributed to the applicant;
• the antecedents of the applicant, including any previous conviction for a cognizable offence;
• the possibility of the applicant fleeing from justice;
• whether the accusation appears to have been made with the object of injuring or humiliating the applicant;
• whether custodial interrogation is genuinely required for the investigation;
• the likelihood of the applicant tampering with evidence or influencing witnesses.

The Supreme Court has held that anticipatory bail need not ordinarily be limited to a fixed period and may continue till the end of trial, though courts may impose conditions or limit it where the facts of a case require.

Common conditions

Courts usually attach conditions such as joining the investigation as and when required, not leaving the country without permission, not contacting or influencing witnesses, and furnishing a personal bond with or without sureties. Interim protection is sometimes granted till the next date while the court calls for a status report from the police.

Where anticipatory bail is restricted

Section 482(4) BNSS provides that anticipatory bail is not available in cases involving accusations under Section 65 or Section 70(2) of the BNS, which deal with rape of a woman under sixteen years of age and gang rape of a woman under eighteen years of age. Special statutes may also contain their own restrictions on anticipatory bail, for example the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Documents usually needed

• A copy of the FIR, complaint or notice received, if available;
• any notice under Section 35(3) BNSS (formerly Section 41A CrPC) asking the person to appear;
• documents showing the background of the dispute (agreements, correspondence, bank records, etc.);
• identity and address proof of the applicant;
• details of any earlier bail applications or orders in the same matter.