Download Intercasies to file anticipatory bail and more Study Guides, Projects, Research Criminal procedure in PDF only on Docsity!
INTRICACIES TO FILE ANTICIPATORY BAIL.
- Samarth Dawande
What is Anticipatory Bail?
1 Anticipatory Bail is granted under Section 438 of the Criminal Procedure Code when a person has the apprehension of arrest in criminal cases. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until final judgment has been passed in his case. Depending on the gravity of the allegations, a person may be able to avoid arrest, however, a person can apply for anticipatory bail even before a First Information Report (FIR) has been filed against him, on anticipation that he has reasonable grounds to believe to be arrested. In cases of criminal cases, especially those pertaining to dowry, anticipatory bail comes as a relief to many accused persons.
Anticipatory Bail Application
2 Anticipatory bail is applied for in anticipation of arrest. It is a direction to release a person on bail, issued before the person is arrested. If the person has a reason to believe that he might get arrested for a crime for which he has been falsely implicated, then he has the right to apply for this type of bail. One may apply for anticipatory bail after learning that a criminal complaint has been filed against him. It is also important to know whether, in cases where the FIR has been filed, the offence is bailable or non-bailable. Since in the former bail is granted as a matter of right, the grant of bail in the latter is based on several contingencies.
Evolution of Anticipatory Bail in Criminal Jurisprudence
3 Before proceeding with the laws of Anticipatory Bail/ pre-arrest bail it is important for us to understand the history behind the origin and evolution of the provision of bail as we know it today. The origin of bail dates back to medieval times, when the first known drafted constitution came to be enacted in the year 1215 by King John of England and was referred to as "Magna Carta" as we know it today. The genesis of the bail can be extracted from the clause 39 of Magna Carta, the simple translation of which reads as "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgement of his equals or by the law of the land." From a perusal of this clause it can be understood that a person shall not be restricted or confined unless and until there is a final judgment in accordance with the laws of land. On a careful reading and decoding of this clause we can greatly relate the said provision with the provisions of bail as provided in Cr.P.C. (^1) How to apply for Anticipatory Bail Application, available at: https://lawrato.com/indian-kanoon/criminal-law/anticipatory-bail-application-how-to-apply-for-anticipatory-bail- (Visited on 13 June, 2021). (^2) Id. (^3) Anticipatory Bail and Its Law, available at: https://www.mondaq.com/india/crime/982502/anticipatory-bail-and- its-laws (Visited on 1 June, 2021).
The old Cr.P.C of 1898 did not have provisions for Anticipatory Bail/pre-arrest bail. As mentioned above, the idea of anticipatory bail or pre-arrest bail was first recommended to the Parliament only under the 41st Law Commission report, post which the provision of Anticipatory Bail/Pre-arrest bail was incorporated in Chapter 33 of the new Cr.P.C 1973 under section 438 which reads as under:
Section 438 of the Criminal Procedure Code
4 Section 438 of the CrPC has been reproduced below verbatim: (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 Session 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 condition that the person shall make himself available for interrogation by a police officer as and when required,
- 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,
- a condition that the person shall not leave India without prior permission of the court,
- such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) 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; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).
Analysis of Section 438 of CrPC
5 The section is divided into 3 sub-sections, which have been analyzed below:
1. Sub-Section I According to sub-section 1, any person can apply for anticipatory bail if he has a reason to believe that he may be arrested on accusation of having committed non-bailable offence. Here the legislators were clear that such an application can only be made if the offence for which the Anticipatory Bail Application (ABA) is filed is a non-bailable offence. The sub-section 1 further provides that such an application can only be moved before the High Court or Session Court that is empowered to give direction to the investigating authority seeking arrest of such applicant, to release the applicant on bail in case of arrest for non-bailable offence. However, the Parliament (^4) The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), s.438. (^5) Id.3.
- The offence against which the bail is sought should be a non-bailable offence.
- There should be a grave apprehension that the accused will be arrested by the police authorities for such a non-bailable offence.
Critical Analysis of Anticipatory Bail
(a) Object:- Section 438 makes a provision enabling the superior courts to grant anticipatory bail, i.e. a direction to release a person on bail issued even before the person is arrested. The Law Commission considered the need for such a provision and observed: The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. In its subsequent report the Law Commission expressed the view that the power to grant anticipatory bail should be exercised in very exceptional case. The Commission further observed: In order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. Under the revised section the prosecution gets maximum opportunity for presenting its case before the grant of anticipatory bail. The factors that go into the decision of the court have been spelt out clearly in the section. (b) Meaning:- The words “anticipatory bail” are not found in Section 438 or in its marginal note. In fact "anticipatory bail” is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants “anticipatory bail”, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.^7 The section, however, makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of warrant by the Magistrate against a person justifiably gives rise to such an apprehension and (^7) Balchand Jain v. State of M.P., (1976) SCC 572.
well entitles a person to make a prayer for "anticipatory bail”.^8 Issuance of a summon for appearance also entitles an accused to apply for “anticipatory bail”.^9 It has also been held that “anticipatory bail” cannot be granted to a person to do something which is likely to be interpreted as commission of a crime even if the offender intended it as something in exercise of his rights.^10 The expression “anticipatory bail” is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.^11 The distinction between an ordinary order of bail and an order of “anticipatory bail” is that whereas the former is granted after arrest and therefore, means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest.^12 (c) Concurrent jurisdiction of High Court and Sessions Court:- According to Section 438(1) an application for "anticipatory bail” can be made to the High Court or Court of Session; however, normally it is to be presumed that the Court of Session would be first approached for the grant of “anticipatory bail” unless an adequate case is made out for straightaway approaching the High Court directly without first coming before the Court of Session.40 The Full Bench of the Allahabad High Court has, however, taken the view that a bail application under Section 438 may be moved in the High Court without the applicant taking recourse to the Court of Session.^13 If the application filed in the Court of Session for "anticipatory bail” is rejected, the applicant can again approach the High Court under Section 438(1) as there is no bar to do so.^14 As bails are against arrest and detention, an appropriate court within whose jurisdiction the arrest takes place or is apprehended or is contemplated will also have jurisdiction to grant bail to the person concerned. Therefore, the High Court or the Court of Session having jurisdiction over the place where the arrest is apprehended by the applicant has jurisdiction to entertain application for "anticipatory bail”, even though the first information report (FIR) might have been registered at a place within the jurisdiction of another High Court or Court of Session.^15 The opinions expressed by the Supreme Court in some cases seem to favor the view that the question of granting “anticipatory bail” to any person who is allegedly concerned with the offence must for all practical purposes be considered by the courts within whose territorial jurisdiction such offences could have been perpetrated."^16 (d) Reasonable apprehension of arrest for a non-bailable offence. - (^8) Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H). (^9) P.V. Narsimha Rao v. State 1997 Cri Lj 961 (Del). (^10) Thayyanbadi Meethal Kunhiraman v. S.I. of Police, 1985 Cri LJ IIII (Ker). (^11) Padma Charan Panda v.. S. Ram Mohan Roy, 1987 Cri LJ 1762 923 (Ori). (^12) Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565. (^13) Onkar Nath Agarwal v. State, 1976 Cri LJ 1142. (^14) Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom). (^15) Pritam Singh v. State of Punjab, 1980 Cri LJ 1174 (Del). (^16) Salauddin Abdulsamad Shaikh V. State of Maharashtra, (1996) I SCC 667.
How to Apply for Anticipatory Bail?
Given below are steps to apply for anticipatory bail^24
- Contact a lawyer to apply for pre-arrest notice/notice bail, and anticipatory bail It is advisable to engage a criminal lawyer once a criminal complaint or FIR has been lodged. Once engaged, a suitable course of action including application for pre-arrest notice, notice bail or anticipatory bail can be decided upon.
- Get the lawyer to draft an anticipatory bail mentioning your version of the facts The Lawyer would draft an application for anticipatory bail mentioning as to why the bail shall be granted while stating your version of the facts surrounding the matter.
- Apply at the appropriate district court or high court Once the application for anticipatory bail is drafted the advocate will file the same at an appropriate Sessions Court.
- Hearing of the Bail Application When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case to be fit for granting anticipatory bail, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made to the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court. Procedure for anticipatory bail application in India^25 The procedure followed will alter depending on whether or not an FIR has been filed. 1. When FIR is not Filed The public prosecutor will talk to the police officer concerned Since no FIR has been filed, the prosecutor will be of the view that there are no grounds for granting anticipatory bail The judge will agree to this and your lawyer will be verbally asked to withdraw the anticipatory bail The lawyer will then make an oral prayer for seven days pre-arrest notice in case the police formulates an intention to arrest you/your family In all likelihood, the judge will grant this plea An order will be passed accordingly. This is called the ‘notice bail’ commonly. If the bail application is rejected, you could apply to the High Court. If the High Court also rejects the bail, you could apply to the Supreme Court 2. When FIR is Filed In cases when the FIR has been filed the Investigating Officer will send a notice of arrest (^24) How to apply for Anticipatory Bail Application, available at: https://lawrato.com/indian-kanoon/criminal-law/anticipatory-bail-application-how-to-apply-for-anticipatory-bail- (Visited on 13 June, 2021). (^25) Id.21.
As soon as this notice is received, one should apply for anticipatory bail following the same procedure as stated above Which Courts have Jurisdiction for Anticipatory Bail Application? When an individual has a reason to believe or an apprehension that he/she may be arrested for accusation of committing of an offence of non-bailable nature, he/she may apply to the High Court or the Court of Sessions for a direction to the investigating agency seeking that if he/she is arrested, he/she may be released on bail.
Bailable and Non-Bailable Offences^26
Depending on the kind of offence that the police have registered, a person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC) Sec 436 provides that when any person other than a person accused of a non-bailable offences is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail. [Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.] Conditions that may be Imposed by the Court: The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including: a condition that the person shall make himself available for interrogation by the police officer as and when required; 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; a condition that the person shall not leave India without the previous permission of the court.
Cancellation of bail
27 An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution in case any of the conditions imposed by the Court are being violated. (^26) How to apply for Anticipatory Bail Application, available at: https://lawrato.com/indian-kanoon/criminal-law/anticipatory-bail-application-how-to-apply-for-anticipatory-bail- (Visited on 13 June, 2021). (^27) Id.
The Supreme Court was cautious while answering the second question by granting discretionary powers to the court to limit the tenure of the Anticipatory Bail in case of special or peculiar facts of case. Not granting Anticipatory bail may cause violation of fundamental rights of an individual under Article 21 of the Constitution of India^30 The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat^31 was pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail." The apex court while observing the above celebrates the two provisions and related them together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld the fundamental right of the citizen. Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with maximum 7 years imprisonment^32 Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar^33 while deciding an application for ABA for offences u/s 498A, felt it necessary to observe that there should be a mandatory notice u/s 41A to be sent to the accused if he is booked for offence with punishment up to 7 years. Rights of First Informant to intervene in Anticipatory Bail Application^34 The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of Maharashtra^4 held that, if victim of the offence appeared in the court seeking permission to be heard, then opportunity of being heard is to be given to him or her. However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra ,^5 took a slightly contrary view to what we discussed above. The court held that "The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and (^30) Anticipatory Bail and Its Law, available at: https://www.mondaq.com/india/crime/982502/anticipatory-bail-and- its-laws (Visited on 1 June, 2021). (^31) (2016) 1 SCC 152 (^32) Anticipatory Bail and Its Law, available at: https://www.mondaq.com/india/crime/982502/anticipatory-bail-and- its-laws (Visited on 1 June, 2021). (^33) (2014) 8 SC C 273 (^34) Id. 25.
diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardized.
