Legal Agreements

Is Fir Necessary for Anticipatory Bail?

calendar10 Jun, 2023
timeReading Time: 9 Minutes
Is Fir Necessary for Anticipatory Bail?

Anticipatory Bail is a legal provision that allows a person to apply for bail in anticipation of being arrested. In simpler terms, it is a pre-arrest bail that can be sought by a person who apprehends that he or she may be arrested for a non-bailable offense.

Anticipatory bail is granted under Section 438 of the Criminal Procedure Code[1] (CrPC) of India. It is a preventive measure to safeguard the individual’s personal liberty and freedom in case of the apprehension of arrest based on false or baseless allegations.

The basic objective of anticipatory bail is to ensure that no person is subjected to unnecessary harassment or inconvenience by being arrested for a non-bailable offense without sufficient cause or justification. It allows an individual to seek protection against any such arbitrary arrest or detention.

Purpose Of Anticipatory Bail

The primary purpose of anticipatory bail is to safeguard the personal liberty and freedom of an individual from an arbitrary arrest by the police in a non-bailable offense. Here are some of the other purposes of anticipatory bail:

  • Prevention of arbitrary arrest: Anticipatory bail is an important provision that prevents the police from making arbitrary arrests on false or baseless allegations. It ensures that the police follow due process of law while making an arrest
  • Protection against false cases: Anticipatory bail is a protective measure that allows individuals to seek protection against false cases or allegations that may be levelled against them. It is a way to safeguard the individual’s reputation and dignity from being tarnished by unfounded accusations.
  • Provision for fair investigation: Anticipatory bail provides a platform for a fair investigation into the allegations against an individual without the threat of arrest looming over them. It helps in ensuring a just and impartial investigation into the matter.
  • Preventing detention: Anticipatory bail prevents the detention of an individual in police custody, which may be detrimental to their physical and mental well-being. It ensures that the individual’s fundamental rights are not violated during the course of the investigation.
  • Preventing abuse of power: Anticipatory bail prevents the police from misusing their power to make arbitrary arrests and harass individuals. It ensures that the police follow the legal process while conducting investigations and making arrests.

Legal Provisions Governing Anticipatory Bail

Anticipatory Bail is governed by the Criminal Procedure Code (CrPC) of India. The relevant section of the CrPC that deals with Anticipatory Bail is Section 438. The section lays down the following provisions:

  • Any person apprehending arrest for a non-bailable offense may apply for Anticipatory Bail to the High Court or the Court of Session
  • The application for Anticipatory Bail can be made before or after the registration of the FIR.
  • The court, after hearing the arguments of the prosecution and the accused, may grant Anticipatory Bail with or without conditions.
  • The conditions that may be imposed while granting Anticipatory Bail include personal bond, surety, surrender of passport, attendance at the police station, etc.
  • If the court grants Anticipatory Bail, the person shall be released immediately after arrest.
  • If the person is not arrested within a specified period, the Anticipatory Bail shall expire.
  • The court may cancel Anticipatory Bail if the accused violates any of the conditions imposed by the court.
  • It is important to note that Anticipatory Bail is discretionary and is granted by the court after considering the facts and circumstances of the case. The court may refuse to grant Anticipatory Bail if it is satisfied that the person is likely to abscond or tamper with the evidence.

FIR And Its Role in Anticipatory Bail

When the police learn about the commission of a cognizable offense, they file a written document known as an FIR (First Information Report). The FIR plays an important role in Anticipatory Bail proceedings, as discussed below:

An FIR is not a precondition for Anticipatory Bail: The CrPC allows an individual to apply for Anticipatory Bail before or after the registration of an FIR. Therefore, the absence of an FIR does not prevent a person from seeking Anticipatory Bail.

Anticipatory Bail can be sought after the filing of the FIR: If an FIR has already been filed against a person for a non-bailable offense, the person can still apply for Anticipatory Bail. The court may grant Anticipatory Bail based on the facts and circumstances of the case.

An FIR may affect the grant of Anticipatory Bail: The filing of an FIR may affect the grant of Anticipatory Bail. The court may consider the contents of the FIR while deciding whether to grant Anticipatory Bail. If the allegations in the FIR are serious and credible, the court may be hesitant to grant Anticipatory Bail.

Surrender before the Police: In some cases, the court may require the person seeking Anticipatory Bail to surrender before the police. Surrender is an indication that the person is cooperating with the investigation and is willing to face the charges.

Cooperation with the Investigation: The court may impose conditions such as cooperation with the investigation, attending the police station, or not leaving the country. These conditions may be imposed even if no FIR has been filed.

In conclusion, while an FIR is not a precondition for Anticipatory Bail, it plays an important role in the decision-making process of the court. The contents of the FIR and the facts and circumstances of the case are crucial in determining whether Anticipatory Bail should be granted.

Difference Between Regular Bail and Anticipatory Bail

The primary difference between Regular Bail and Anticipatory Bail is the stage at which they are sought. Regular Bail is sought after a person is arrested and detained in custody, while Anticipatory Bail is sought before the arrest.

Here are some other key differences between Regular Bail and Anticipatory Bail:

  • Purpose: The purpose of Regular Bail is to secure the release of a person who has been arrested and detained in custody. The purpose of Anticipatory Bail is to secure the release of a person who apprehends arrest in a non-bailable offense.
  • Stage: Regular Bail is sought after a person is arrested and detained in custody. Anticipatory Bail is sought before the arrest.
  • Procedure: The procedure for seeking Regular Bail is different from that of Anticipatory Bail. In the case of Regular Bail, the person has to apply to the court having jurisdiction over the matter. In the case of Anticipatory Bail, the person can apply to either the High Court or the Court of Session.
  • Time Frame: The time frame for seeking Regular Bail is usually shorter as the person is already in custody. In the case of Anticipatory Bail, the person has to apply before the apprehension of arrest.
  • Conditions: The conditions imposed by the court while granting Regular Bail and Anticipatory Bail may be different. In the case of Regular Bail, the court may impose conditions such as depositing a surety amount, surrender of passport, or attendance at the police station. In the case of Anticipatory Bail, the court may impose conditions such as personal bond, surety, or not leaving the country.
  • Violation: If the conditions imposed by the court are violated, the court may cancel both Regular Bail and Anticipatory Bail.

In conclusion, Regular Bail and Anticipatory Bail serve different purposes and are sought at different stages. While the procedure for seeking both is similar, the conditions imposed by the court may differ.

Factors Considered While Granting Anticipatory Bail

While granting Anticipatory Bail, the court considers various factors to determine whether the applicant is entitled to such relief. The following are some of the factors that may be considered by the court:

  • Nature of the Offense: The court may consider the nature and gravity of the offense for which the Anticipatory Bail is sought. If the offense is serious and involves a threat to society, the court may be hesitant to grant Anticipatory Bail.
  • Credibility of the Accusations: The court may consider the credibility of the accusations made against the applicant. If the accusations are frivolous or baseless, the court may be more inclined to grant Anticipatory Bail.
  • Past Record: The court may consider the past record of the applicant, including any previous criminal convictions, if any.
  • Likelihood of Tampering with Evidence: The court may consider the likelihood of the applicant tampering with the evidence or intimidating witnesses.
  • Possibility of Fleeing: The court may consider the possibility of the applicant fleeing to avoid arrest and prosecution.
  • Cooperation with Investigation: The court may consider the level of cooperation of the applicant with the investigation authorities. If the applicant has been cooperative and has not obstructed the investigation, the court may be more inclined to grant Anticipatory Bail.
  • Social Standing: The court may consider the social standing of the applicant, including their education, employment, and financial status. The court may be more inclined to grant Anticipatory Bail to a person with a good social standing.
  • Flight Risk: The court may consider whether the applicant is a flight risk or whether there is a possibility of the applicant absconding.
  • Benefit to Society: The court may consider the benefit that the applicant may provide to society if granted Anticipatory Bail, for instance, if the applicant is a medical practitioner or a social worker.

In conclusion, the court considers various factors while deciding whether to grant Anticipatory Bail. The decision is discretionary and based on the facts and circumstances of each case.

When Is FIR Necessary for Anticipatory Bail?

  • FIR (First Information Report) is not always necessary for Anticipatory Bail. However, if the police have already registered an FIR against the applicant, it can affect the grant of Anticipatory Bail.
  • The requirement of an FIR for Anticipatory Bail depends on the nature of the offense for which the bail is sought. In cases where the offense is non-bailable, an FIR is generally necessary for Anticipatory Bail. Non-bailable offenses are those offenses for which bail cannot be granted as a matter of right and are considered to be more serious in nature.
  • On the other hand, in cases where the offense is bailable, an FIR may not be necessary for Anticipatory Bail. Bailable offenses are those offenses for which the accused has the right to be released on bail upon depositing the required amount of bail with the court.
  • It is important to note that even if an FIR has not been registered, the applicant seeking Anticipatory Bail should provide all the relevant information regarding the offense for which they apprehend arrest. The court may take into account the seriousness of the offense and other relevant factors while deciding whether to grant Anticipatory Bail.

In conclusion, the requirement of an FIR for Anticipatory Bail depends on the nature of the offense. While an FIR may not always be necessary, it can affect the grant of Anticipatory Bail in cases of non-bailable offenses.

Alternatives To Anticipatory Bail

If Anticipatory Bail is not granted, the applicant may have other legal remedies available to them. Some of the alternatives to Anticipatory Bail are:

  • Regular Bail: If the applicant has already been arrested, they can apply for Regular Bail. Regular Bail is the release of the accused person from custody, subject to certain conditions, until the trial is concluded.
  • Quashing of FIR: If the applicant believes that the FIR registered against them is false, baseless, or malicious, they can approach the High Court or the Supreme Court for quashing of the FIR.
  • Habeas Corpus: If the applicant has been arrested and is being detained illegally, they can file a writ petition of Habeas Corpus in the High Court or the Supreme Court. The writ seeks to release the detained person from custody.
  • Discharge: If the prosecution fails to establish a prima facie case against the applicant, they can seek a discharge from the court. A discharge means that the court dismisses the case against the accused person.

It is important to note that the availability of these alternatives depends on the facts and circumstances of each case. The decision to grant any of these remedies is discretionary and based on the merits of the case.

Recent Judgments on FIR And Anticipatory Bail in Indi a

Here are some recent judgments on FIR and Anticipatory Bail in India:

  • Siddique Kappan v. State of Uttar Pradesh (2021): In this case, the Supreme Court granted interim bail to journalist Siddique Kappan, who was arrested while he was on his way to report on a case. The court observed that the non-filing of an FIR and the failure to produce Kappan before a magistrate within 24 hours of his arrest was a violation of his fundamental rights. The court also directed that Kappan be shifted to a government hospital for medical treatment.
  • Arnab Goswami v. State of Maharashtra (2020): In this case, the Bombay High Court granted interim Anticipatory Bail to journalist Arnab Goswami, who was named as an accused in a case of abetment to suicide. The court observed that the FIR filed in the case was not maintainable and directed Goswami to cooperate with the investigation.
  • Sushila Aggarwal and Anr. v. State (NCT of Delhi) and Anr. (2020): In this case, the Supreme Court observed that the registration of an FIR is not a mandatory requirement for Anticipatory Bail. The court held that the purpose of Anticipatory Bail is to enable the accused to approach the court before his or her arrest, and an FIR is not a pre-condition for granting such relief.
  • Amrish Kumar v. State of Chhattisgarh (2020): In this case, the Supreme Court observed that Anticipatory Bail cannot be granted as a matter of right and is a discretionary relief. The court held that while granting Anticipatory Bail, the court must balance the interests of the accused with those of the state and society.

These judgments highlight the importance of fundamental rights and the discretion of the court while granting Anticipatory Bail. They also emphasize the need for careful consideration of the facts and circumstances of each case.

Conclusion:

In conclusion, Anticipatory Bail is an important legal remedy available to an accused person to avoid arrest in anticipation of a possible arrest. The grant of Anticipatory Bail depends on various factors, such as the nature of the offense, the likelihood of the accused person absconding, and the merits of the case. While an FIR may not always be necessary for Anticipatory Bail, it can affect the grant of bail in cases of non-bailable offenses. If Anticipatory Bail is not granted, the accused person may have other legal remedies available to them, such as Regular Bail, Habeas Corpus, Quashing of FIR, or Discharge. Recent judgments by the Supreme Court and High Courts of India have highlighted the importance of fundamental rights, the discretion of the court, and the careful consideration of the facts and circumstances of each case while granting Anticipatory Bail.

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