Provision for grant of anticipatory bail is contained in Section 438 of the Criminal Procedure Code. The relevant extract from this section is: “Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail”.
It should thus be clear from this legal provision that an application for grant of anticipatory bail can be filed only if that person has “reason to believe that he may be arrested”, i.e., he should have apprehension of an arrest. In fact, the apprehension of arrest should also be in respect of a specific non-bailable offence. If the person is not apprehending arrest, he cannot apply for anticipatory bail, because in that situation it would become a blanket order of no arrest, which is not permissible.
The second part of your question is whether the anticipatory bail application can be moved without the presence of the applicant (i.e., the person who seeks anticipatory bail). This question is answered in sub-section 1-B of Section 438 of Cr.P.C. which is as under:
“(1-B) 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.”
Therefore, the presence of the applicant is necessary at the time of the final hearing of the application for grant of anticipatory bail and passing of the final order, if the court considers it necessary on an application made to it by the public prosecutor. Otherwise, generally speaking, the presence of the applicant may not be necessary at the time of making the application for grant of anticipatory bail, but the court can insist for the presence of the applicant.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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