Difference Between Anticipatory Bail and Regular Bail

Anticipatory bail in India is defined in section 438 of CrPC and in section 482 of BNSS ( BHARATIYA NAGARIK SURAKSHA SANHITA )

Regular bail  is defined in Section 437 and 439 of CrPC and in section 480 and 483 of BNSS ( BHARATIYA NAGARIK SURAKSHA SANHITA )

Section 438, Cr. P.C. provides a protective order of anticipatory bail  in favour of the accused who is apprehending his arrest; while Section 437 and 439, Cr. P.C. applies to the accused who is in custody. 

Anticipatory Bail

1. Definition: Anticipatory bail is a provision under Section 438 of the Code of Criminal Procedure (CrPC). It is granted to a person who anticipates that he might get arrested in the future for a non-bailable offense.

2.Objective: The primary aim of anticipatory bail is to protect a person from being arrested, in cases where he has a reasonable belief that he might get arrested based on a police complaint or an FIR.

3.Application: The person seeking anticipatory bail must file an application in the High Court or Sessions Court before an arrest is made. Anticipatory bail is often filed in anticipation of arrest due to a non-bailable offense.

4.Conditions: Anticipatory bail generally involves terms such as a person will cooperate with the investigation officer , will not influence witnesses, will not leave the country , will not commit any offense , will furnish a bond/ surity of required amount etc.

5.Duration: Anticipatory bail can be granted for a specific period or until the filing of a charge sheet in court. It might be subject to review or further conditions set by the competent court of Law.

6.Revocation: Anticipatory bail can be revoked if the conditions imposed on the accused  in Anticipatory bail order are not followed or if there is a change in circumstances.

Regular Bail

1.Definition: Regular bail is typically granted under Section 437 or Section 439 of the CrPC to a person who has already been arrested and is in custody. It applies to both bailable and non-bailable offenses.

2.Objective: The aim of regular bail is to release a person who has been arrested and is in custody, allowing him to be free while awaiting trial or further proceedings.

3.Application: Regular bail is applied for after an arrest has been made. Regular bail can be requested from the Magistrate Court (for bailable offenses) or Sessions Court/High Court (for non-bailable offenses).

4.Conditions: Conditions for regular bail include ensuring the accused will attend court proceedings, not tamper with evidence, and not influence witnesses. And will not leave the country and will furnish required bond/surety  Conditions may vary depending on the case and the court’s discretion.

5.Duration: Regular bail lasts until the completion of the trial or as per the conditions imposed by the court.

6.Revocation: Regular bail can be revoked if the accused fails to comply with the conditions set by the court or if new circumstances arise that justify the revocation.

Key Differences Between Anticipatory Bail and Regular bail

• Timing: Anticipatory bail is sought before an arrest, while regular bail is sought after an arrest has been made.
• Purpose: Anticipatory bail aims to prevent the arrest, while regular bail seeks to release a person who is already in custody.
• Application Court: Anticipatory bail applications are usually made in the High Court or Sessions Court before arrest, whereas regular bail applications are made in the court where the case is being heard or where the accused is in custody.

COMPARISON OF CrPC WITH BNSS

Cr PC	BNSS ( BHARATIYA NAGARIK SURAKSHA SANHITA )
SECTION 438 Direction for grant of bail to person apprehending arrest.	SECTION 482 NO CHANGE
SECTION 439 Special powers of the High Court or Court of Session regarding bail.	SECTION 483 NO CHANGE

FAQ About Anticipatory Bail

1. What is anticipatory bail?

Anticipatory bail is a legal provision under Section 438 of the Code of Criminal Procedure (CrPC) that allows a person who anticipates arrest for a non-bailable offense to seek bail before being arrested.

2. Who can apply for anticipatory bail?

Any person who has a reasonable belief that they might get arrested for a non-bailable offense can apply for anticipatory bail. This includes individuals who are named in a complaint or in FIR and have valid reasons to believe that an arrest is imminent.

3. When should one apply for anticipatory bail?

Anticipatory bail should be applied , before the arrest takes place. It is typically filed in the High Court or Sessions Court as soon as the person learns about the  possibility of arrest.

4. How does one apply for anticipatory bail?

To apply for anticipatory bail, the individual or their legal representative must file a petition under section 437 0f CrPC in the High Court or Sessions Court. The petition should include reasons why the applicant believes they may be arrested and why bail should be granted.

5. What are the grounds for granting anticipatory bail?

The grounds for granting anticipatory bail include:

• No Prima Facie Case: If there is no substantial case against the applicant.
• Fearing Arrest: If the applicant can demonstrate a genuine fear of arrest.
• Cooperation: If the applicant assures cooperation with the investigation.
• Not Likely to Tamper Evidence: If there is no likelihood of the applicant influencing or tampering with evidence or witnesses.

6. What conditions might be imposed while granting anticipatory bail?

Conditions may include:

• Cooperating with Investigation: The applicant must cooperate with the investigation.
• Not Influencing Witnesses: The applicant should not interfere with or influence any witnesses.
• Regular Attendance: The applicant might need to attend the court proceedings regularly.
• Surrendering Passports: In some cases, the court may ask for surrender of passports to prevent fleeing the country.
• Furnish surety/ bond   the applicant is ready to furnish required amount of surety /band
• No future  crime/ offence   the applicant will make sure that he will not get involve in any further crime/ offence

7. What happens if anticipatory bail is granted?

If anticipatory bail is granted, the applicant is protected from arrest for the duration specified by the court in order of anticipatory bail or until the filing of a charge sheet in the court . The court may also set specific conditions that the applicant must adhere to.

8. What if anticipatory bail is denied?

If anticipatory bail is denied, the applicant can be arrested and must apply for regular bail after being taken into custody. Denial of anticipatory bail does not preclude applying for bail later.

9. Can anticipatory bail be granted for any type of offense?

Anticipatory bail is generally granted for non-bailable offenses. For bailable offenses, regular bail can be applied for after arrest.

10. Can anticipatory bail be revoked?

Yes, anticipatory bail can be revoked if the applicant violates the conditions set by the court or if new evidence emerges that justifies the revocation.

11. How long does anticipatory bail last?

The duration of anticipatory bail can vary. It may be granted for a specific period or until the charges are filed. The court might extend or modify the bail conditions as and when  necessary.

12. Is anticipatory bail a guarantee of not being arrested?

Anticipatory bail provides protection against arrest based on the current circumstances but does not guarantee that the applicant will never be arrested. If the conditions are violated or new evidence surfaces, the court can take further actions and may revoke its earlier order of granting anticipatory bail

13. Can anticipatory bail be granted if a person has been previously arrested in the same case?

Anticipatory bail is typically sought before an arrest. If someone has already been arrested, they would need to apply for regular bail.

14. Can anticipatory bail be granted to someone who is already out on regular bail?

Yes, anticipatory bail can be granted in addition to regular bail if the person faces imminent arrest for different or additional charges.

15. What is the difference between anticipatory bail and regular bail?

Anticipatory bail is sought before an arrest to prevent the arrest , while regular bail is sought after an arrest has occurred to secure release from custody.

16. Can anticipatory bail be granted in all cases?

No, anticipatory bail is not granted in all cases, such as in cases where the offense is punishable by death or life imprisonment. But it can be also granted in these cases (depending upon the facts and circumstances of the case).

17. Can regular bail be cancelled?

Yes, regular bail can be cancelled by the court if the accused violates any of the conditions set by the court or if new evidence comes to light.

18. Can anticipatory bail be granted in cases of economic offenses?

Yes, anticipatory bail can be granted in cases of economic offences, subject to the discretion of the court.

19. What factors are considered when granting bail?

Factors include severity  of the offense, the strength of evidence, the accused’s age,  accused gender and their past criminal history etc.

20. Can bail be denied in non-bailable offences?

Yes, bail can be denied in non-bailable offenses if the court believes that the accused may tamper with evidence, abscond, or commit further crimes.

21 .  What is a bail bond?

A bail bond is a written agreement that the accused will attend all court hearings and follow conditions set by the court in exchange of his bail.

22 . Is anticipatory bail an automatic right?

No, anticipatory bail is not an automatic right, and the competent court of law  considers various factors before granting the anticipatory bail

23. Is anticipatory bail available in all states of India?

Yes, anticipatory bail provisions are applicable uniformly across all states in India.

Conclusion

Understanding the difference between anticipatory bail and regular bail is crucial for anyone navigating the legal system. It serves as a preventive measure, ensuring that an individual is not wrongfully detained. Additionally, anticipatory bail requires the individual to demonstrate a reasonable belief of potential arrest, whereas regular bail focuses on the circumstances following the arrest, such as the severity of the offense and the risk of absconding. For a more detailed understanding and personalized advice, it is recommended to consult with legal experts. They can provide comprehensive guidance tailored to your specific situation, helping you navigate the complexities of bail procedures effectively.