Anticipatory Bail | How to Avoid Police Arrest | Section 438, Criminal Procedure Code, 1973
In this topic we discuss about the Anticipatory Bail under Indian Criminal Laws. What is it and How to Avoid Police Arrest.
Anticipatory Bail
Any person is having apprehension of arrest due FIR or compliant registered against the individual. That personal can apply for anticipatory bail before Session Court or High Court.
After obtaining order of anticipatory bail from the Court, Court can release the individual on bail even on Police arrest.
Object of Pre-Arrest Bail
The object of anticipatory bail is to secure the liberty of the alleged accused. Police Arrest can curtail it.
Court takes the important factor into consideration i.e. gravity of the offence, while granting anticipatory bail.
Section 438 of Criminal Procedure Code, 1973
Where any person has reason to believe that he may be arrested for non-bailable offence. He may apply to the High Court or the Court of Session for bail.
The Court will consider the following factors:-
(i) the nature of offence or gravity of the accusation.
(ii) the antecedents of the applicant including the facts as to whether he has previously undergone imprisonment on conviction by a Court in respect of the any cognizable offence.
(iii) Possibility of the applicant to flee from justice
(iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
The Court may either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Time Period of Bail Granted by High Court
The protection under Section 438 of Criminal Procedure Code (Cr.PC) is available to the accused only till the Court summons the accused based on the charge-sheet (report under Section 173(2) of Cr.PC.
On such appearance, the accused has to seek regular bail under Section 439, Cr.P.C. and the Court consider the bail application on its own merits.
Merely because Court has granted bail to an accused earlier does not mean that Court should grant regular bail automatically under Section 439 of Cr.P.C.
The satisfaction of the Court for granting protection under Section 438 is different from the one under Section 439 while considering regular bail. (Satpal Singh vs. State of Punjab, 2018 Cri.L.J. 2843 (S.C.)
Consideration by Court for grant of Anticipatory Bail
High Court does not grant Bail as a matter of rule, but grants only when an accused has a special case and the Court convinced itself that the accused would not misuse his liberty.
The Hon’ble Supreme Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC 694, has enumerated the parameters that Court should take these into consideration while dealing with the bail application.
Provision of Anticipatory Bail after filing of Charge Sheet
Supreme Court, High Court and the Court of Session has the necessary power vested in them to grant bail in non-bailable offences under Section 438 of Cr.P.C. even when Court has taken cognizance or Police has filed Charge-sheet, provided that facts of the case require the Court to do so. (Ref. Bharat Chaudhary vs. State of Bihar, AIR 2003 SC 4662)
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Questions and Answers on Anticipatory Bail
(a) Is copy of FIR is mandatory for filing of Anticipatory Bail Application ?
Ans. No, Individual can file application for anticipatory bail without registration of FIR. Mere apprehensions of arrest is sufficient for application of Bail.
(b) Can anyone invoke Article 226 to secure his personal liberty where anticipatory bail is not possible ?
Ans. Yes, Anyone who is aggrieved can invoke the jurisdiction of the High Court.
(c) What is difference between Ordinary Bail and Anticipatory Bail ?
Ans. The distinction is that whereas the former is granted after arrest, and therefore means release from custody of the police.
The latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
(d) Is there any guidelines by Supreme Court on Arrest ?
Ans. Yes, Supreme Court has issued Guidelines on Police Arrest and any violation may invite contempt proceedings.
Bail is the Rule and Jail is Exception : Principle
(e) Why should someone file Application for Bail ?
Ans. Someone should file Anticipatory Bail just to avoid Unlawful Detention and Arrest.
(f) If complainant files a complaint after so many days and police register FIR, it such situation can someone apply for Anticipatory Bail ?
Ans. Yes, Delay in FIR is always fatal in most of the times except POCSO Act and 376 IPC matters.
(g) Whether the Order of Anticipatory Bail affect the merit of the case ?
Ans. No, Session Court / High Court grants anticipatory bail as per the circumstances of the case. It has not effect on the merit of the case.
(h) Whether Anticipatory Bail can be cancelled ?
Ans. Where the accused has violated the conditions made in bail bond and investigation is held up as the custodial interrogation of accused could not be done due to anticipatory bail. In Such situation High Court can cancel the anticipatory bail.
(i) Can I file second bail application before High Court after rejection of First Bail Application ?
Ans. Yes, Second Bail Application is maintainable if it is moved with new grounds.
(j) If High Court has granted Bail to other co-accused, in such situation High Court may grant me bail ?
Ans. High Court can consider this important grounds however parity cannot be the sole grounds of the bail.
(h) What the new provision of the Bhartiya Nagrik Suraksha Sahinta (BNSS) 2023 for anticipatory bail ?
Ans. Section 482 of BNSS speaks about the anticipatory bail under new criminal laws.
Read More : No Bar on Fresh Bail Application on Later Occasion : Supreme Court