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How and where can I apply for Anticipatory Bail

 > Anticipatory Bail & Regular Bail  > How and where can I apply for Anticipatory Bail

How and where can I apply for Anticipatory Bail

Anticipatory Bail has been dealt in criminal law under Section 438 of the Code of Criminal Procedure (Cr. P.C.) of 1973 through which the High Court and the Sessions Court have been equipped with the discretion to provide such bail. The filing of an FIR is not necessary by the Applicant before he approaches the Court to file an Anticipatory Bail. A person can be arrested upon other reasons that satisfy the criterion of ‘reason to believe.’ However, in Criminal Cases especially cases concerning dowry, anticipatory bail comes as a relief to several accused persons. For an Anticipatory Bail to be granted, the High Court or the Court of Sessions are to be approached if an individual is arrested for any offense like Criminal Breach of Trust (Section 406 of the Indian Penal Code, IPC), Mischief by destroying or moving a landmark fixed by the public authority (Section 434 IPC), Husband or relative of husband of a lady subjecting her to cruelty (Section 498A IPC) and the other non-bailable offence. If such cases arises then an individual must prepare a strong criminal defense and immediately apply for an anticipatory bail.

In the criminal case of Bishundeo Sahu vs. State of Bihar on 20th January, 2011 (Cr. MISC. No. 1257 of 2010) the anticipatory bail of the petitioner had been rejected by the High Court and appeal was preferred by him before the Supreme Court. The Apex Court was inclined to grant bail to the petitioner Bharat Chowdhury but a serious objection was raised by the counsel appearing for the State. The objection of the State Counsel was that since trial Court had taken cognizance of the offence, Section 438 of the Cr. P.C cannot be made applicable for granting anticipatory bail and only remedy available to the appellant is to approach trial Court, surrender before it and apply for regular bail. While granting anticipatory bail, the consideration of gravity of the offence should be an important factor because cognizance has been taken, these things in itself cannot be constructed as prohibition against grant of anticipatory bail.

Therefore, a person seeking Anticipatory bail must know about Section 438 of the Code of Criminal Procedure (Cr. P.C.) of 1973. This Section states that when a person has an apprehension that he may be arrested by the police on a suspicion that he has committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for the relief that the two Courts are discretion to grant under this Section after a perusal of all facts and if the person who has applied qualifies all requisite conditions to be granted such anticipatory bail.

Section 438(2) of the Code of Criminal Procedure (Cr. P.C.) of 1973 empowers the High Court or the Sessions Court to impose conditions before granting Anticipatory Bail. These conditions are –
i) The person who has been granted bail under this Section must ensure that he remains accessible to the police for interrogatory purposes.
ii) That person should not threaten or coerce any person who is knowledgeable in respect of the case.
iii) That person should not leave the territorial boundaries of the country without requisite Court permission.

Section 438(3) states that a person, after having succeeded his application for Anticipatory bail later be arrested by an officer and be in a position at the time of the arrest or conversely later when under the custody of such officer, to pay the bail amount, he shall be freed on bail.

Procedure for obtaining Anticipatory Bail
The first thing an accused person is expected to do after filing an application for anticipatory bail is the forum which he has to file such application in. The accused person is expected to go through Section 438 carefully. Section 438 suggests that there are two forums which the accused person has to choose to file his application in the High Court or the Court of Sessions. It is often advised that the accused should choose the latter forum to file his application for he will have a second chance to apply to the High Court if the former Court rejects the application.

The factors that are to be adjudged by the Sessions Court and the High Court before granting Anticipatory Bail to the Applicant are –
• the categorization and the seriousness of the allegations that have been raised against the accused.
• External considerations in respect to the past criminal record (if there is any) maintained by the accused.
• The probability of the accused escaping from the purview of the Court.
• If the allegations levied against the Accused have been exacted to harming the accused.

Reason to Believe: The ‘reason to believe’ parameter can be seen in the criminal case of K. Rajasekhara Reddy vs. State of A.P. on 13th July, 1998, 1998 (4) ALD 677, the Court noted that the phrase ‘reason to believe’ essentially was meant to connote that there was to be a logical bedrock for an Accused to come to the conclusion that he had been accused of committing a non-bailable offence, for which his arrest was sought. A bare misgiving was based on hearsay or guesses could not be sustained as a ‘reason to believe’. It must be based on clear evidence and rational inference that he comes to the conclusion that he is likely to be arrested.

Thus, Section 438 can be summarized as a statutory codification of the fundamental right to life and liberty provided to persons under the Indian Constitution. The rules to be followed while filing the application for availing the anticipatory bail are somewhat flexible with few exceptions and the protection of the rights of the Applicant have often been favoured over other procedural issues that may have risen while filing the application. Having said that, a strong criminal defense is the key to success in any given criminal case.
Authored By: Adv. Anant Sharma & Anugraha Sundas

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