Anticipatory bail
Arjun Arjun
(Querist) 13 May 2021
This query is : Resolved
My wife father threatened that he will file case against me and will get me arrested by police. He has not registered fir. Can I apply for anticipatory bail
Dr J C Vashista
(Expert) 14 May 2021
No.
An application for grant of anticipatory bail can be filed with concerned FIR.
K Rajasekharan
(Expert) 14 May 2021
The filing of a First Information Report (FIR) is not a condition precedent or a prerequisite for the court to grant anticipatory bail under Section 438 CrPC.
It is the imminence of a likely arrest founded on a reasonable belief that serves as the sole ground for granting anticipatory bail to a person apprehending arrest. It can be granted even if an F.I.R. is not yet filed.
What the Section 438 CrPC requires is that the applicant must have genuine apprehension of his arrest in a non-bailable offence. If a person has a real apprehension of arrest he can apply for anticipatory bail even before registration of an FIR.
But anticipatory bail can be granted by the court only in extremely necessary occasions.
P. Venu
(Expert) 14 May 2021
What is the wrongdoing alleged? Is it true?
Arjun Arjun
(Querist) 14 May 2021
Venu sir,
I have not done anything wrong to her or her family members.I got transfer to Coimbatore last year August. She told me that she is not interested to live with me. I have not forced her. I went to Coimbatore on 21/8/20 alone. Since then, I am staying there. Within 1 month, that is on 20/9/20,she went to her parents house purportedly for writing PSC exam. After that,we used to talk over phone/whatsapp daily. On 3/12/20,I asked her to come back for celebrating our son's 1st birthday. But, she refused and stopped attending my calls. I tried to involve her relatives. But it did not help. So I filed restitution of conjugal rights case in December 2020.As she did not allow me to see my kid and refused to accept the items I sent for the kid, I filed child visitation case in April 2021,last month. And, on 18/4/21,they called me and said that they will file this case against me. I have not done anything wrong to them
P. Venu
(Expert) 14 May 2021
Obviously, the threat is only a reaction to RCR you have failed. There is nothing to be perturbed. But avoid any situation which would give them a chance to make allegations as to 498A etc.
Arjun Arjun
(Querist) 14 May 2021
They allege that from the very time of marriage and till the date she left my house, I and other family members tortured her physically and mentally for dowry. But, their allegation is false
P. Venu
(Expert) 14 May 2021
There is no need to be over concerned. At present the Police are under strict instructions not to make arrest unless approved by SP of the District.
Arjun Arjun
(Querist) 14 May 2021
Thank you very much sir
Sri Vijayan.A
(Expert) 14 May 2021
Dear Anoop,
The allegations are usual usual by parents invented for the complaint. So, arrest may not be there easily.
Try to have negotiation to reunite.
Arjun Arjun
(Querist) 14 May 2021
Thank you very much sir
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
Firstly it is not necessary to file an application seeking anticipatory bail just for the threats given b y your father in law.
You may understand that his complaint may not even be received by the police, instead they will try to compromise, reconcile the matter and close the complaint.
If the complaint is very serious other than matrimonial issues, then the police may try to register FIR, you may better file an application for AB at that time.
It would be unnecessary to file an application for AB for just threats by him.
Don't be scared by such vague threats.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
Anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
This would show that even during the investigation, there are two stages at which there may be apprehension of arrest.
One is, before the F.I.R. and another is subsequent to the F.I.R.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
refer Section 438 Cr.P.C.
438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest; He shall be released on bail.
In Section 438(1) Cr.P.C. there are two essential requirements, viz., (1) reason to believe that a person may be arrested; (2) such an arrest is on an accusation of having committed a non-bailable offence. Only when these requirements are fulfilled, the High Court or the Sessions Court could entertain the application for anticipatory bail and then consider the facts and circumstances of the case, in order to find out whether it is a fit case for anticipatory bail.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
The petitioner must show that he has reason to believe that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the apprehension of the petitioner that he may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief. It is not merely enough for the petitioner to. show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the petitioner is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because only then, the High Court or the Court of Session can determine whether the petitioner has reason to believe that he may be so arrested.
A belief can be said to be founded on reasonable grounds only if there is something tangible on the basis of which, it can be said that that the petitioner's apprehension that he may be arrested is genuine.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
The specific events and facts must be disclosed in the affidavit with the petition filed by the the petitioner in order to enable the Court to Judge the reasonableness of his belief for the exercise of the power conferred by the section.
Therefore, the Court which grants anticipatory bail must take care to specify the non-bailable offence or offences in respect of which alone the order will be effective.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
What is the meaning of anticipatory bail? There is no much of difference between the Bail and Anticipatory bail. The only distinction between Bail and Anticipatory bail is that wheras the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. As such, the pre-arrest bail and post-arrest bail are one and the same, since both would relate to the release after arrest.
From the collocation and scheme of Chapter XXXIII and Section 438 Cr.P.C, it becomes explicitly clear that the legislature intended to bring anticipatory bail within the category of bail and not to treat it as something different from bail.
T. Kalaiselvan, Advocate
(Expert) 15 May 2021
a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial.
The purpose of bailing out before the trial is to secure the presence of the accused when required, when there is the hardship of incarceration, before the guilt has been proved, while the presumption of innocence is to be given effect to.
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them, or for other purposes by getting them detained in jail for some days
Arjun Arjun
(Querist) 15 May 2021
Thank you very much, sir
P. Venu
(Expert) 15 May 2021
It is my humble but considered opinion that multiple posting have been and have posed substantial challenges to the integrity of this platform and the stature of the experts. It is only recently that sanity has been restored. Hence learned expert Mr.T. Kalaiselvan is requested to avoid, to the extent possible, multiple postings.
I trust Mr. Kalaiselvan would be magnanimous in pardoning my overreach in making this suggestion.
Dr J C Vashista
(Expert) 16 May 2021
I agree with experts, till date no FIR has been lodged, hence no case is there and no application for anticipatory bail can be filed /admitted.
You have already stated to have instituted suit for restitution of conjugal rights and another petition for the relief of visitation rights of your child, as desired and available to you as per law.
You have already engaged an able, competent and intelligent lawyer who is well aware about facts and circumstances of the case and proceeding correctly / perfectly as per law, have faith in him/ her and follow his / her advise.
Arjun Arjun
(Querist) 16 May 2021
Thank you very much sir
T. Kalaiselvan, Advocate
(Expert) 16 May 2021
I respect Expert Mr. P. Venu's concern about the sanity of this forum and his request, I shall avoid posting multiple posts in the same thread until I receive a reply from the querist, thank you for letting me know about it, because I was absent from this forum for quite a long time hence I am not aware of the latest resolutions made by the participating experts of this forum.
Advocate Bhartesh goyal
(Expert) 14 May 2021
