"Anticipatory bail" means, "bail in anticipation of arrest". Section 438 of Criminal Procedure Code states as follows;
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 Session 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 directions in the light of the facts of the particular case, as it may think fit, including-
(a) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(b) 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;
(c) a condition that the person shall not leave India without the previous permission of the Court.
(d) such other condition as may be imposed.
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. If a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court.
It should be noted that where the High Court or Court of Sessions has not passed any interim order under this 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.
The anticipatory bail can not be granted after a Magistrate has issued warrant. 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.
Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.
Anticipatory bail can not be granted in all cases as a matter of course. The exercise of power has to be invoked in exceptional case only. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free and full investigation and there should be prevention of harassment and unjustified detention of the accused.
Anticipatory bail can not be granted as a matter of right. Applicant can approach High Court for grant of anticipatory bail even if his application is rejected by the Court of Sessions, but not vice versa. Where a matter of dowry death is under investigation it is not prudent for High Court to grant anticipatory bail. If the application for anticipatory bail is rejected the second application is not barred.