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Tag: CrPC 438 – Anticipatory Bail

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023

Posted on April 13 by ShadesOfKnife

A single judge bench of Allahabad High Court held as follows,

It is true that filing of first information report (F.I.R.) is not a condition precedent to exercise the power under Section 438(1) Cr.P.C., as held in Gurbaksh Singh Sibbia Vs. State of Punjab,(1980) 2 SCC 565, but at the same time it is also to be kept in mind, as held in the aforesaid case by the Hon’ble Apex Court, that“when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based onconcrete facts (and not vague or general allegations) relatable to a specific offence or particular offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which is considering the application, the extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier,so long as the facts are clear and there is reasonable basis for apprehending arrest.“

Then, What is ‘Reason to Believe‘?

The Hon’ble Apex Court in Adri Dharan Das Vs. State of West Bengal, (2005) 4 SCC 303 has emphasized over this requirement and held as under.
“Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 CrPC convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out of for granting of the relief sought. (Para 16)”
The aforesaid theory makes the legal position explicit that Section 438 (1) of Cr.P.C. applies not only at post FIR stage, but it does not require that the offence must have been registered. It is contemplated by this section that if a person is going to apply for anticipatory bail, he must have a reasonable belief that he may be arrested on accusation of having committed a non-bailable offence.

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023
Posted in High Court of Allahabad Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 438 - Anticipatory Bail FIR is Not a Consition Precedent for Anticipatory Bail Javed Ahmad Vs State of U.P. and Anr | Leave a comment

Sanjay Vs The State (NCT of Delhi) and Anr on 20 Jun 2022

Posted on June 25, 2022 by ShadesOfKnife

A division bench of Apex Court held as follows:

We are of the considered view that in a matter involving personal liberty, the Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest. At any rate, posting an application for anticipatory bail after a couple of months cannot be appreciated.
We request the High Court to dispose of the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. If the main application could not be disposed of, for any reason, within the stipulated time, relief sought for in the interlocutory application shall be considered on its own merits. Till such time, we grant interim protection from arrest to the petitioner herein.

Sanjay Vs The State (NCT of Delhi) and Anr on 20 Jun 2022
Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 438 - Anticipatory Bail Sanjay Vs The State (NCT of Delhi) and Anr | Leave a comment

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Posted on April 6, 2022 by ShadesOfKnife

Justice G.R. Swaminathan held that Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers (u/s 482 CrPC) to make such orders as to secure the ends of justice.

From Para 5,

5.The Union of India not wanting to take chances also filed Review Petition (Crl) No.228 of 2018. The same was disposed of vide judgment dated 01.10.2019 by a three Judges Bench. On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr.Subhash Kashinath Mahajan judgment has not only survived but remains intact.

From Para 11,

11.The outcome of the challenge can be one way or the other. Section 18 A of the Act can be upheld. Or it can be struck down. Even if its validity is upheld, the High Courts would still be entitled to grant anticipatory bail. The statute only excludes the applicability of Section 438 of Cr.PC. In the State of Uttar Pradesh, Section 438 of the Code has been deleted by the State amendment and the said deletion has been upheld in (1994) 3 SCC 569 (Kartar Singh vs. State of Punjab). But, that has not curtailed the extraordinary power of the High Court to entertain a plea of anticipatory bail and this power was held to be available in Hema Mishra vs. State of U.P. and Ors, (2014) 4 SCC 453).

From Para 12,

12. Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers to make such orders as to secure the ends of justice. I hope I am not indulging in quibbling or hair-splitting when I say that neither Section 18 nor Section 18 A engraft a bar against grant of anticipatory bail. They are to the effect that the provision of Section 438 of the Code shall not apply to a case under the Atrocities Act. Even if Section 438 of Cr.PC is not available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that this Court is very much possessed of the power to grant anticipatory bail even in cases arising under the Schedules Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitions can be filed under Article 226 of the Constitution of India or under Section 482 of Cr.PC.

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/186580740/

https://www.lawyerservices.in/Dr-S-Ariharan-and-Another-Versus-The-Inspector-of-Police-Thirumangalam-Madurai-District-Crime-No-of-2019-and-Another-2019-11-26

 

Posted in High Court of Madras Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 438 - Anticipatory Bail CrPC 438 - Anticipatory Bail Denied CrPC 438 - Anticipatory Bail in SC/ST Atrocities Act CrPC 438 - Anticipatory Bail Not Maintainable CrPC 482 - Quash CrPC 482 - Saving of inherent powers of High Court Dr.S.Ariharan and Anr Vs Inspector of Police and Anr Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order | Leave a comment

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Posted on March 23, 2021 by ShadesOfKnife

A 2-judge bench of Supreme Court passed the following directions in regards to bail proceedings in sexual offences (only applicable to women survivors).

From Para 45 and 46,

44. Having regard to the foregoing discussion, it is hereby directed that henceforth:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

 

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr CrPC 437 - When bail may be taken in case of Non-Bailable Offence CrPC 438 - Anticipatory Bail Issued or Recommended Guidelines or Directions or Protocols to be followed Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order | Leave a comment

Satri Anitha Vs State of Andhra Pradesh

Posted on October 16, 2020 by ShadesOfKnife

This is a while-color crime from Kadapa, AP from 2017, wherein the accused went to Supreme Court for Anticipatory bail.

Satri Anitha Vs State of AP on 28 Sep 2020

Here is the AB dismissal order from AP High Court:

Satri Anitha Vs State of AP on 06 Aug 2020

Some news about these people:

https://www.newindianexpress.com/cities/vijayawada/2017/jul/11/couple-held-for-duping-people-with-easy-loans-1626616.html

https://timesofindia.indiatimes.com/city/vijayawada/man-woman-aide-held-for-gypping-loan-seekers/articleshow/59518402.cms

Posted in Supreme Court of India Judgment or Order or Notification | Tagged CrPC 438 - Anticipatory Bail Satri Anitha Vs State of Andhra Pradesh | Leave a comment

All Bail Judgments

Posted on August 9, 2020 by ShadesOfKnife

Here are all kinds of Bail matters, granted/denied, Regular/Anticipatory etc

  • Station Bail
  • Regular Bail Orders u/s 437
  • Anticipatory Bail Orders u/s 438 CrPC
  • Default or Statutory Bail u/s 167(2)
  • Transit Bail
  • NBW Judgments

 


Index to MASTER sitemap here.

Posted in Assorted Court Judgments or Orders or Notifications | Tagged Catena of Landmark Judgments Referred/Cited to CrPC 167 - Procedure when investigation cannot be completed in twenty-four hours CrPC 167(2) - Default or Statutory Bail CrPC 437 - When bail may be taken in case of Non-Bailable Offence CrPC 438 - Anticipatory Bail | Leave a comment

Ankit Bharti Vs State of U.P. and Anr on 02 March 2020

Posted on March 4, 2020 by ShadesOfKnife

A landmark judgment, where in Full-bench (5-Judge) of Allahabad High Court held that, Sessions Court and High Court have concurrent jurisdiction in matters of 438 CrPC (Anticipatory Bail) and that there is no rule that first option at Sessions Court ought to be exhausted before seeking audience at High Court, but can be done so under Special circumstances only.

Ankit Bharti Vs State of U.P. and Anr on 02 March 2020

Citations: [

Other Source links:


Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from main.sci.gov.in/judgments, judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Posted in High Court of Allahabad Judgment or Order or Notification | Tagged Ankit Bharti Vs State of U.P. and Anr CrPC 438 - Anticipatory Bail CrPC 438 - Direction for grant of bail to person apprehending arrest CrPC 438 - High Court can be approached under Special Circumstances for AB Full-Bench Decision Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order | Leave a comment

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 29 January 2020

Posted on January 29, 2020 by ShadesOfKnife

A wonderful pronouncement indeed, of a 5-eminent judge Constitutional bench which decided that once Anticipatory Bail is granted u/s 438 CrPC by either a Sessions Court or High Court, it does not have any time limit to it regarding it’s effect. Further, here it was held, No need to get a Regular Bail once AB is granted.

From now onwards, no need to covert Anticipatory Bail into a Regular Bail, upon closure of investigation by I.O. and filing of Charge sheet into a Trial Court.

Here is the Order passed.

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 29 January, 2020 Order

And the 133-page jewel of judgment, endorsing the view taken by my favorite Justice Shri Dalveer Bhandavi in Siddharam Satlingappa Mhetre is below.

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 29 January, 2020 Judgement

Citations : [2020 SCC ONLINE SC 98], [2020 DLT SC 266 741]

Other Sources :

https://indiankanoon.org/doc/123660783/

https://www.indianemployees.com/judgments/details/sushila-aggarwal-and-others-versus-state-nct-of-delhi-and-another

https://www.indianemployees.com/judgments/details/sushila-aggarwal-and-others-versus-state-nct-of-delhi-and-another

5-judge bench holds no time limit could be fixed while granting anticipatory bail [Full report]


The life of this case is in detail available here.


Index of all Anticipatory Bail Matters is here and all Bail matters list is here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Catena of Landmark Judgments Referred/Cited to CrPC 438 - Anticipatory Bail CrPC 438 - Direction for grant of bail to person apprehending arrest CrPC 438 - Valid Duration For Anticipatory Bail Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order Sushila Aggarwal and Ors Vs State (NCT of Delhi) | Leave a comment

Anticipatory Bail Orders

Posted on May 19, 2018 by ShadesOfKnife

Anticipatory bail granted in cases filed under various IPC sections. The bare section is here.

Supreme Court of India

  1. Gurbaksh Singh Sibbia Etc Vs State Of Punjab on 9 April, 1980 [Landmark Judgment: AB valid until end of Trial; No FIR necessary for grant of AB]
  2. Arnesh Kumar Vs State of Bihar and Anr on 2 July 2014 [Landmark Judgment: No automatic arrest in all cases with punishment less than or up to 7 years]
  3. Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010 [Landmark Judgment: AB valid until end of Trial]
  4. Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015 [Ground for grant of AB]
  5. Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 15 May, 2018
    • Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 29 January 2020 [Landmark Judgment: AB valid until end of Trial]
  6. Dr. Rajesh Pratap Giri Vs State of U.P. and Anr on 05 Mar 2021 [No need to go and obtain Regular Bail after filing of Charge sheet by IO, if Anticipatory Bail was granted earlier]
  7. Udho Thakur Vs State of Jharkhand on 29 Sep 2022 [No Payments when allowing Anticipatory Bail]
  8. Monirul Islam Vs The State of West Bengal on 01 Dec 2022 [AB cannot passed for a fixed time period]

 

 

Allahabad High Court

  1. Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023 [Relies on Gurbaksh Singh Sibbia; FIR is not a pre-condition to grant AB, but Reasonable Apprehension Of Being Arrested has to be explained]

 

Bombay High Court

  1. Chandra Kanjappa Kuchchikurwe Vs State Of Maharashtra & Anr. on 14 December, 2012

 

Kerala High Court

  1. Koshore Vs State of Kerala on 16 February, 2016
  2. Shelbin Vs State of Kerala on 16 February, 2018

 

District Courts

  1. In re:- Arnab Rao @ Arnad Roa

Index of all Bail matters is here.

Posted in File a Petition | Tagged Catena of Landmark Judgments Referred/Cited to CrPC 438 - Anticipatory Bail Summary Post Work-In-Progress Article | Leave a comment

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