What is Anticipatory Bail?

Last Updated at: Oct 30, 2020
Anticipatory Bail
On 15th October 2020, the Kerala High Court directed the Enforcement Directorate (ED) not to arrest the former Principal Secretary to the Chief Minister of Kerala, till October 23. The Court directed this while deciding the anticipatory bail plea by Sivasankar in the case registered under the Prevention of Money Laundering Act (PMLA), in connection with the gold smuggling case.


As per a  PTI news dated 14 October, 2020, the former principal secretary to the Kerala Chief Minister, has moved the Kerala High Court seeking anticipatory bail. This comes as he is apprehending arrest by the Enforcement Directorate probing the Kerala gold smuggling case


Anticipatory Bail is a kind of bail granted to a person in anticipation of his possible arrest in connection with an alleged offence. Under Section 438 of the Criminal Procedure Code, any person who apprehends or has reason to believe that he/she is likely to be arrested on false or trumped up charges, due to enmity with someone, or in connection with a false case lodged or likely to be lodged against him, may approach a Court of Sessions or High Court for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

The applicant seeking Anticipatory Bail must show that he has a reasonable apprehension to believe, that he may be arrested for a non-bailable offence, so that the court may take care to specify the offence or offences in respect of which alone the order will apply; and it is not a blanket order covering all other offences. It is pertinent to note that grant of such Anticipatory Bail under Section 438 of the Criminal Procedure Code, takes effect only upon arrest. The concerned High Court or Court of Sessions while granting Anticipatory Bail may find it necessary to impose certain conditions upon the applicant, in light of the specific facts of a particular case.

These conditions may include the following:

1. That the applicant must make himself available for the purpose of interrogation by the police authorities as and when necessary;

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2. That the applicant should 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;

3. That the applicant should not leave the country or a specified territory without prior permission of the court. An individual who has been granted Anticipatory Bail will not be taken into custody, until and unless the said Anticipatory bail granted stands cancelled by the court, as a result of a breach of an imposed condition. An application for cancellation of Anticipatory bail can be preferred by the prosecution or the first informant in a criminal case.