What is Anticipatory Bail?

Anticipatory bail is a provision under Indian criminal law that allows criminal suspects to apply for bail before they have been arrested and charged with an offense. This provision is only allowable for potential suspects who expect to be arrested without warrant for a crime in which bail is traditionally prohibited. This type of bail is commonly utilized under dowry related laws, in which one spouse suspects he or she may be arrested for violating the terms of a dowry.

Under the Criminal Procedure Code of Indian law, an individual who anticipates being arrested may file an appeal with the High Court or Court of Session. During the preliminary hearing, the applicant must provide substantial proof that arrest is imminent and that he or she has reason to believe a criminal charge is forthcoming. The Court will deliberate on the facts of the case and deduce the likelihood of an arrest. A decision will be handed down either granting or denying the request for anticipatory bail.

If the Court approves the motion for anticipatory bail, the direction may include any number of stipulations. Common stipulations include a potential suspect's complete cooperation with authorities; he or she must consent to questioning by police when and if necessary. He or she may also be directed to refrain from threatening, endangering, or bribing any persons involved in the case. The possible suspect might also be barred from leaving the country until the case has been satisfactorily settled.

Should an unwarranted arrest occur after the granting of the bail, the suspect has the full legal right to post bond. If he or she is unable to procure the necessary funds immediately, bail may be posted at any time while the suspect is in police custody. However, if a judge issues a warrant either before or after the arrest, the anticipatory bail option is no longer valid.

Anticipatory bail provisions are not open-ended agreements. They typically expire after a predetermined amount of time. At that time, the investigation into the case has usually progressed, and the Court deliberates on the evidence to determine whether there is sufficient support for an arraignment or a pardon.

This type of provision is predominantly used in dowry-related situations. For example, if a husband or his family attempt to extort money from a bride's family in hopes of obtaining a larger dowry, a husband may fear his wife or her family will have him arrested. Anticipatory bail, however, is rarely permissible in cases of dowry death, in which a wife is murdered or commits suicide as the result of extortion attempts, harassment, or torture at the hands of her husband or his family.