Legal Tips to obtain Anticipatory Bail from High Court: Lawyers Advice

To understand the procedure to apply for anticipatory bail, we must understand the jurisdiction of the same.
There are two key factors to decide the jurisdiction in anticipatory bail cases:
● Alleged accusations of committing an offence,
● Apprehension of arrest;
it is not necessary for these to always overlap.

Section 438(1) of the Code of Criminal Procedure, 1973 states that if a person has reason to believe that he is accused of committing a non-bailable offence & he may be arrested for the same, then he can apply to the High Court or the Sessions Court.

In the State of Assam and Ors. vs. Brojen Gogol and Ors. (A.I.R. 1998 SC 144), the Hon’ble Supreme Court of India held that the question of granting anticipatory bail to any person who is allegedly connected with offences in question, because all purposes must be considered by court under whose territorial jurisdiction such activities could have been perpetrated. When the State of Assam moved the Supreme Court, the Supreme Court transferred the cases to Assam High Court, but while doing so expressly chose to leave the jurisdiction question undecided.

In C. I. Mathew and Ors. Vs. Govt. of India Home Dept. C.I.B. New Delhi and Ors. (1984 KLJ 766) held “If there are two courts having same jurisdiction and both are allowed to issue anticipatory bail then the court in whose jurisdiction the crime is committed, and the court within whose territory the person is arrested; conflict of decision has to be avoided and inherent limitation is implicit in the exercise of this jurisdiction according to provisions of Section 438 of the Code of Criminal Procedure,1973. The Section specifically refers to the term ‘the High Court’ and the Act defines the term ‘High Court’, in Section 2 (e) of the Code of Criminal Procedure.”
The word “the”, mentioned in the above-mentioned Section specifies that one must apply in the competent Sessions Court or High Court who has the jurisdiction to decide the application of Anticipatory Bail of the Applicant.

Procedure to apply for Anticipatory Bail
The Hon’ble Allahabad High Court issued a notice for the grant of Anticipatory Bail pursuant to Section 438 of the CrPC to an apprehensive individual.

Following are the direction of the High Court regarding the filing of an application for Anticipatory Bail:
(1) Court fee of Rs. 5/- must be attached in the application, as prescribed for application.
(2) The affidavit of the person apprehending arrest must be attached with the application.
(3) The second paragraph of the affidavit filed in support of the application must contain the reason to believe that deponent apprehending arrest on accusation of a non-bailable offence with particulars i.e. Crime Number, Police Station, and Section(s) under which the arrest can be apprehended, if it is in the knowledge of the applicant.
(4) The third paragraph of the affidavit filed in support of the application must contain that the accusation does not fall under the offences mentioned under sub-section (6) of the Section 438 of Code of Criminal Procedure,1973.
(5) The fourth paragraph of the affidavit must contain that the applicant has not filed any application under Section 438 of Cr P.C. before any High Court in India, about the same subject matter.

After the above procedure, one of these two situations may prevail:

1. When no First Information Report (FIR) has been Registered:
   ● Grounds for grant of bail does not exist in this scenario.
   ● The applicant must request the court to grant a pre-arrest notice.
   ● If granted, this pre-arrest notice period can be used to apply for anticipatory bail.
   ● If the anticipatory bail application is rejected, the applicant can apply to the High Court and further to the Supreme Court.
2. When an First Information Report (FIR) has been Registered:
   ● The accused will get a notice of arrest 7 days before the date of arrest.
   ● An anticipatory bail application can be filed within these 7 days.
   

While granting anticipatory bail, the Court can impose any/all of the following conditions based on the facts of the particular case:

1. The Applicant must be available for interrogation by the police officer, as and when required;
2. The person shall not, directly or indirectly, induce, threaten or make a promise to any person associated with the facts of the case to distract him from disclosing such facts to the court or any police officer;
3. The person shall not leave India without the permission of court.

Important Points to be considered while applying for an anticipatory bail in High Court:-

1. Signature of the accused must be in the application.
2. Affidavit in support must also be filed along with the application.
3. Power of Attorney or Vakalatnama must be filed along with the application.
4. Court Fees must be properly attached to the application and Vakalatnama.
5. Copy of FIR must be filed along with the true-type and translated copy of the FIR if the same is in another language.
6. The non-filing of any other bail application before any other court must be mentioned in the application.
7. If the accused has filed for an anticipatory bail in the sessions court, then the copy of the order of the sessions court must be filed along with the anticipatory bail format before the High Court.
8. Copies of all relevant documents and the documents filed before the Sessions court must be attached with the application.
9. Copy of the charge sheet (if filed) has to be attached with the application.
   

Recently, the Hon’ble Supreme Court in Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another ruled that anticipatory bail granted to accused on apprehension or threat of arrest should not be restricted by time, saying it was not in the interest of society at large to limit the power related to liberty of citizens. Those very pre-arrest bail, will continue until the trial begins.

In the application for the anticipatory bail, the applicant must focus on the merits of his/her ‘reason to believe’ that he is falsely accused for the said offences. Furthermore, the applicant must attach relevant documents, evidence and cite relevant case laws which support his plea for anticipatory bail. To conclude, it is advised that the application for anticipatory bail must be supported by concrete evidence that proves the innocence of the accused. The application must also include the nature of the accused, that he will not flee from justice and he is not likely to induce or threaten the witnesses of the case.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu