Anticipatory bail under section 438 of criminal procedure code means bail in anticipation of arrest. Arrest means actual seizure or touching of a person’s body with a view to his detention. This means anticipatory bail is not an order to prevent arrest. It is an order to release a person after his arrest. In other words anticipatory bail seeks to rule out detention after the event of arrest.
Punjab and Haryana High Court at Chandigarh has held in several judgments on anticipatory bail under section 438 of Criminal Procedure Code that the power exercise able under section 438 is somewhat extraordinary in character. It is only in exceptional cases where it appears that a person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offense is not likely to otherwise misuses liberty, then power is to be exercised under section 438 to grant anticipatory bail. Anticipatory bail can be filed only before Court of Session in the concerned district court or in the Punjab and Haryana High Court at Chandigarh. However this does not mean that grant of anticipatory bail is confined to offenses punishable with death or imprisonment for life. It also does not mean that section 438 is confined to the offenses exclusively triable by Court of Session. It only means that power to grant anticipatory bail lies only with Court of Session and Punjab and Haryana High Court.
Direction under section 438 of criminal procedure code is issued before the arrest of a person and the direction becomes operative only after the arrest of the person. Court cannot restrain arrest and such orders cannot be passed under section 438.
Anticipatory bail cannot be counted as a matter of right it is essentially a statutory right conferred after coming into force of the Constitution of India. Therefore it cannot be considered as an essential ingredient of article 21 of the Constitution. And it’s non-applicability to a certain specific category of offenses cannot be considered as violative of article 21.
The main purpose of anticipatory bail is to protect the person who, under garb of criminal prosecution, is harassed and his status in the society is lowered. If the court comes across a prosecution of this nature then it will be definitely bound to protect the individual and his status and reputation. However if there is clinching evidence against the accused, it would not be justifiable to grant anticipatory bail. Thus the intention of the lawmakers in introducing section 438 of criminal procedure code for the grant of anticipatory bail is totally the person from unnecessary apprehension or disgrace of being detained in jail for some days before he can apply for bail in cases where he may have been implicated falsely by designing rivals and particularly so in a case where the person concerned is not likely to abscond.
In criminal cases where questions of fact of civil nature are disputed, anticipatory bail should not be denied. For example – X says accused A has to pay him Rs. 20 crore. But since A has not paid, he has committed offense of cheating under section 420. But if A has not admitted that he has to pay X, A will get anticipatory bail. Example 2 – In an anticipatory bail of husband in a dowry case under section 498A and 406, wife alleges that her articles have not been given back. Husband denies having any articles. Police says since husband has not given back the articles, his bail must be dismissed. Court can give anticipatory bail to husband saying that anticipatory bail is not a recovery proceeding. In a disputed question of fact, anticipatory bail cannot be rejected.
Punjab and Haryana High Court at Chandigarh while granting the anticipatory bail to a person has held that where there were no specific allegations against an accused in the fir and there was no evidence to connect him with the crime, anticipatory bail had to be granted to the accused. Under this law, anticipatory bail for 498a, dowry prohibition act and Protection of Women from Domestic Violence Act is granted to accused and their relatives. Similarly, anticipatory bail for NRI (Non-Resident Indian) is essential provision since fake FIRs are lodged against them to force them to pay money in civil cases like divorce, maintenance, land disputes, property disputes and succession matters. In very rare cases, anticipatory bail without fir is granted to persons. This is also called blanket bail. This means although no FIR has been lodged, but person fears that some false FIR will be lodged against him and he is unaware of provisions under which fake allegations will be made. As I said, this is very rare case of anticipatory bail without fir.
You can contact us to know how to get anticipatory bail for 498a , 307, 326, 323, 376, 302 of IPC, Prevention of Corruption Act and to know documents required for an anticipatory bail. In anticipatory bail cases, proper documentation can guarantee success in court case. We have assisted clients in getting anticipatory bail from Punjab and Haryana High Court Chandigarh in cases like adultery, assault, attempt to murder, cheating, cheque dishonor cases, counterfeiting of currency notes, criminal breach of trust, criminal defamation, criminal intimidation, criminal misappropriation of property, culpable homicide not amounting to murder, dacoity, dowry death, extortion, fema violation, forgery, intellectual property frauds, kidnapping, murder, narcotics and drugs violations, rape, rash and negligent driving, banking frauds, robbery, theft, trespass, violation of cyber laws like piracy, stealing of data and other such forgery and also voluntarily causing grievous hurt, wrongful confinement.