06 April 2018 01:07PM
What is Anticipatory Bail?
Anticipatory bail is a special type of bail which is can be sought by a person even before he is actually arrested. Anticipatory bail is governed by Section 438 of the Code of Criminal Procedure (CrPC) which states that if a person has reason to believe that he may be arrested by the police over a non-bailable offence, then he or she can approach the High Court or Sessions Court seeking an order for anticipatory bail. An anticipatory bail order will enable such a person to be released on bail once he is arrested. Therefore, anticipatory bail is a bail order which is procured before one is arrested and comes into force after such arrest is made.
This begs the question as to which would such a mechanism as anticipatory bail even exists within the criminal justice framework. The purpose of an arrest is to restrain the accused and prevent him from running away from justice, so that that the accused can be brought before the court and put to trial and also to prevent him or her from tampering with the evidence of the case or influencing the witnesses. It would be unfair and unjust to take away from a person his freedom and liberty while the case is pending against him/ her if the accused can guarantee the court that they will not abscond, tamper with the evidence or influence the witnesses thereby prejudicing justice.
What constitutes a ‘reason to believe'?
The grounds on which a person can approach the court with an anticipatory bail application is defined by a broad term: that the person has a ‘reason to believe' that he or she may be arrested. This reason may arise when the accused comes to know that someone has approached the police to file a case against them. In such cases, an arrest can be apprehended if the police call the accused for investigation and inform them that a complaint has been registered against them. But in cases where the accused is already aware that someone has a complaint against him and they fear that they might be arrest by the police, then they should approach the court with argument stronger than mere fear of getting arrested.
But one need not always have a complaint or an FIR filed against them in order to approach the court for anticipatory bail. The Supreme Court has clarified in many cases that an FIR or a criminal complaint is not a condition precedent to seeking anticipatory bail. This means that ‘reason to believe' can include both police complaints and FIRs but also threats that the applicant may have received.
Some common instances where anticipatory bail is sought for are false implications, false complaints in cases of family feuds, dowry cases, implications due to political or professional rivalry etc.
When considering an application for anticipatory bail, the court has to apply its mind and balance the rights of the accused with the duty to ensure the safety of the complainant and the society at large. The court there has to necessarily look into the following factors:
-The seriousness and nature of the accusations against the accused
-The past criminal record of the accused
-The possibility of whether the accused may abscond and run away
In addition to these three factors, the court should also consider various other facets of the case as has been laid down by the Supreme Court in the judgment of Siddharam Satlingappa Mhetre v. State Of Maharashtra, (2011) 1 SCC 694. The Court stated that when considering anticipatory bail applications, the court should consider the following additional factors:
-The likelihood of the accused repeating the offence or other similar offences.
-Whether the accusations have been only for the purpose of humiliating or demeaning the accused which may bring damage to their character, career or societal standing.
-The impact that the anticipatory bail may have, especially in cases which affect a large portion of the society.
-The court should be very careful in considering the case material and should go over all of the material that is available. The court should also be clear about the role of the accused in the case at hand.
-The court has to come to a decision while maintaining the balance between a fair and free investigation into the case with that of unjustified harassment or detention of the accused.
-The court should also be reasonable about the possibility of evidence tampering and influencing of the witness by the accused when considering their anticipatory bail application.
Even if there is some amount of doubt regarding the legitimacy or genuineness of the complaint against the accused, the accused is entitled to anticipatory bail.
How to apply for anticipatory bail?
The first thing that you will need to apply for anticipatory bail would be a lawyer to help you through the legal process.
You will also need certified copies of some documents which include the FIR, the charge sheet, the complaint that was filed with the police and the private complaint report. If in the event that you do not possess these documents, then they can be acquired by way of a Right to Information (RTI) application. However, it must be noted that such documents of the FIR and the complaint are not mandatory and are not necessary in order to file an anticipatory bail application but you must have a strong enough reason to file for anticipatory bail in such cases.
The application for anticipatory bail should then be filed with either the High Court or Sessions Court having jurisdiction over the matter. Once the application is filed, the Public Prosecutor will be notified about the case. The Public Prosecutor is then given some time to prepare his case against the anticipatory bail application. The Public Prosecutor will then submit his objections against the anticipatory bail application and arguments from the lawyer of the accused/applicant and the public prosecutor shall follow. After hearing the arguments of both the sides, the court comes to the decision of whether to allow anticipatory bail or to reject it.
What happens in cases where FIR has not been filed?
In cases where no FIR has been filed, the Public Prosecutors by default will assume that there are no grounds on which anticipatory bail should be granted and the court may ask the applicant to withdraw the anticipatory bail application. In such cases, the applicant's side can ask the court for a pre-arrest notice which is valid for seven days in the instance that the police intend to arrest the accused. This is usually called a notice bail. If the bail petition is rejected by the sessions court then you can appeal to the High Court and if even that gets rejected then you can approach the Supreme Court.
What happens in cases where the FIR has already been filed?
When an FIR is filed, the investigating offer who is in charge of the case will deliver an arrest notice. You should approach the court immediately upon the receipt of the notice with the anticipatory bail application and the above-mentioned process will come into action.
Anticipatory Bail Application and Bailable Offences
Section 438 of the Code of Criminal Procedure states that anticipatory bail can only be granted in when a case fulfils two conditions: that the applicant has reason to believe that they may be arrested; and that the offence for which they may be arrested is a non-bailable offence. This means that for offence that are bailable offence, anticipatory bail under section 438(a) cannot be granted. This is because in bailable cases, it is the legislative right of the accused to apply for bail. On the other hand, for non-bailable offences, bail does not come as a legislative right, but as an appeal to the court which will decide the matter using its own discretion based on the facts and circumstances of the court.
Cancellation of Anticipatory Bail
The law on cancellation of regular bail and anticipatory bail is similar to each other. Bail can be cancelled under the following circumstances:
-Violation of any condition that is attached to the bail order
-Misuse of the freedom that is granted to the accused under bail
-When the bail order itself is invalid
-Or when the bail order is made upon irrelevant conditions.
When the court grants anticipatory bail, it also lays down the condition that the accused will have to be present for police interrogation when they call for him or her. This is so that the freedom granted by the anticipatory bail cannot be misused. Therefore, if the accused as not compiled by such conditions of the anticipatory bail, the state can ask the High Court to cancel the bail.
Some important points to note:
In cases of dowry deaths, the Supreme Court has stated that such cases need not be taken up necessarily by the High Courts, especially in circumstances when the death of the woman occurs in the house of her in-laws. In such cases, the Magistrate should be allowed to decide whether anticipatory bail needs to be granted and then it is not fair for the High Court to intervene in such matters.
In cases of serious offences, anticipatory bail is usually not granted by the court. The court has the responsibility to balance the rights of the accused the disgrace that they might suffer from being imprisoned with the effect of releasing the accused by an anticipatory bail on the police investigation, the public and the victims in a case. If the involvement of the accused is prima facie established in a serious offence, it would be very imprudent on part of the court to grant anticipatory bail without the existence of overriding circumstances and consideration. In this light, the fact that the accused is a prominent member of the society or that the accused has the possibility of winning the elections if they sit for it cannot be considered as such overriding considerations when the allegations against them prima facie point towards a serious offence.
In cases of large-scale scams and frauds, anticipatory bail is also not usually granted until and unless it can be proved that the accusations are not genuine.
In cases involving a criminal breach of trust, the maximum penalty that can be given is that of life imprisonment. However, anticipatory bail can be sought for in such cases too provided that there is enough justification to allow the court to pass such an order.
If in case there are multiple accused and one of them is granted a regular, default bail, then the fact that this accused was granted bail cannot be used as a ground by another accused seeking anticipatory bail. This is because a default bail is a matter of right and the court does not look at the merits of the case when granting it, on the other hand, grant of anticipatory bail relies solely on the merits of the case and the how the court considers these facts and circumstances.
Moreover, regular bail and anticipatory bail are granted at different stages of a case. While regular bail is granted after the police investigation as considerably progressed into a case and after the stage where the investigation officer has interrogated the accused, anticipatory bail is applied for much before this stage, right at the beginning of an investigation.
This distinction is important to note because as per the principle of parity, if a co-accused in a case is granted bail, then the other accused can also be granted bail on the same allegations.It is also to be noted that when a superior court grants anticipatory bail to an accused, it should not simultaneously direct the subordinate court to consider releasing the accused on regular bail. The Supreme Court in the case of Ranjit Singh v. State of M.P. 2013 SCW 5728 has said that such a practice does not comply with the wordings of Section 438 and neither is it in consonance with the established legal principles of anticipatory bail as such order run the risk of causing confusion in the minds of the subordinate court
27 July 2018 05 25 PM
The law for issuance of warrants has been laid down in The Code of Criminal Procedure, 1973 under Chapter VI. The warrants whether it is bailable or non-bailable should never be issued in casualties and should only be issued in cases after suitable examination of actualities and complete utilization
24 July 2018 01 13 PM
Section 2 of the Code of Criminal Procedure, 1973 defines bailable and non bailable offences. Bailable offence is an offence which is shown as bailable in the First Schedule and it is right of the accused to be released on bail on giving required security.
17 July 2018 04 50 PM
India has a poor reputation with regards to detailing of any criminal activity. A few crimes, especially against ladies, go unreported. This is for an assortment of socio-political reasons, yet some place among them is likewise a misconception of lawful rights. India, in truth, has every one of the
17 July 2018 04 20 PM
"Bail" is the arrival of a man who will now be taken to jail or who has just shown up in court, in return for a guarantee to show up in court when planned. When you've been captured the Police have a circumspection to give you bail ("Police bail") in the
17 July 2018 04 06 PM
An Anticipatory Bail comes vigorously simply after an FIR is recorded against you and not before that. So, in the event that you have an Anticipatory Bail and a cop captures you, at that point, you should create the Anticipatory Bail before him and after that, he will undoubtedly discharge you.
03 July 2018 11 15 AM
Contempt of court is any action that is performed by any person in defiance of the authority of a court of law, an action that disrespects the court, or one that hinders the court from delivering justice.
19 June 2018 01 04 PM
Definition of Offence The term ‘Offence’ is defined under Section 2(n) of the Code of Criminal Procedure (CrPC) as an act or an omission to act which is punishable under any law in force at the time of the commission or omission of the act. An act or omission that violates the rights of
29 May 2018 11 17 AM
Women safety and crimes against women have always been a serious issue in India and is always a point to worry about for the Indian citizens and foreigners who visit the country. Stalking is one such crime against women but unfortunately, it is not seen as a serious offence by the enforcement agenci
30 April 2018 02 11 PM
An offence is an act or an omission to act that can be punished under the Law of India. The Code of Criminal Procedure (the CrPC) divides offences into categories of cognizable and non- cognizable offences.
25 April 2018 02 02 PM
Fines and challans for traffic violations in Bangalore can now be paid online through the Bangalore traffic police website. This article will inform you about the various traffic violations and the penalties attached to them as well as inform you about the pay off the traffic fines and challans onli
23 April 2018 11 06 AM
The term ‘Offence’ is defined under Section 2(n) of the Code of Criminal Procedure (CrPC) as an act or an omission to act which is punishable under any law in force at the time of the commission or omission of the act. An act or omission that violates the rights of other or bring harm to
18 April 2018 05 00 PM
Compoundable offences are those offences which are enlisted in Section 320 of the Code of Criminal Procedure. These are the offences wherein the complainant agrees to enter into a compromise and drop his or her charges against the accused. This compromise needs to be of bona fide nature and should n
06 April 2018 01 07 PM
Anticipatory bail is a special type of bail which is can be sought by a person even before he is actually arrested. Anticipatory bail is governed by Section 438 of the Code of Criminal Procedure (CrPC) which states that if a person has reason to believe that he may be arrested by the police over a n
06 November 2017 04 38 PM
The same way there are two sides to every coin, there are special provisions of law originally intended to protect vulnerable classes but often get misused to manipulate and victimize others. The special protection accorded to women under the Dowry Prohibition Act, Prevention of Domestic Violence Ac
Popular Lawyers in India