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

According to Section 438 of the Code of Criminal Procedure of 1973, if a person has reason to believe that he will be arrested on charges of having committed a non-bailable offence, he will apply for an anticipatory bail before the High Court or the Sessions Court for a warrant under this section which, in the event of such arrest, applies. He shall be released on bail and, taking into account the following conditions, the court shall provide him with anticipatory bail;

1. the nature and gravity of the accusation against the applicant.
2. the social background of the applicant including the fact as to whether he has previously been imprisoned on conviction by a Court in respect of any cognizable offence
3. the possibility of the applicant to flee from Police.
4. when the allegation was made with the intention of harming or humiliating the claimant by having him arrested in such a way, either refuse the request immediately or issue an interim bail order.

The Jurisdiction Issue
To understand the procedure to apply for anticipatory bail, we must understand the jurisdiction of the same.
There are two key factors to decide jurisdiction in anticipatory bail cases:
● Alleged accusations of committing an offence,
● and 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 problem of granting anticipatory bail to any person allegedly linked to the offenses involved must be regarded for all practical purposes by a court within whose territory these activities may have been carried out. When the State of Assam moved the Supreme Court, the Hon’ble Supreme Court transferred the cases to the High Court of Assam, 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
Important Points to be considered while applying for an anticipatory bail in the Sessions 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. Copies of all relevant documents and the documents filed before the Sessions court must be attached with the application.
8. Copy of the charge sheet (if filed) has to be attached with the application.

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 a 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.

The Court may enforce the following conditions when granting anticipatory bail based on the facts of the particular case:

1. The applicant must be available, if and when necessary, for police interrogation;
2. The person shall not induce, threaten or make assurances, directly or indirectly, to any person indulging in the facts of the case to dissuade him from disclosing those facts to the court or any police officer,
3. The person is not permitted to leave India without prior court permission.

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