Mr.Rebates

Mr. Rebates

Monday, October 25, 2010

How to get Anticipatory Bail ?

I wish to share my experience that one should not be overconfident in courts as anything can happen there. Therefore in criminal matters, on the day of order, all accused must be ready with applications for (1) Bail - Cash Bail and for that keep sufficient money say about Rs.15K per person, and (2) suspension of order for appeal to higher court.


If AB is rejected on authenticity of voice recordings - exhaust your chances before going to below points -file a revision petition challenging the rejection of the audio recording. Then try
1. State's Forensic Lab
2. A private organisation called Truth Labs, Hyderabad. Not sure, if their findings are admissible in the court. their website linked here : http://truthlabs. org/services. php
Bail commonly means release on one’s own bond, with or without sureties. The purpose of bail is not to set the accused free, but to release him from custody and to entrust him to the custody of his sureties who must produce him at his trial at a specified time and place. Every accused person is presumed under law to be innocent until proved guilty. An opportunity is given to him to prove his innocence by granting bail.

LAW IN DETAIL………
The offences committed by an accused fall under two categories:
1. BAILABLE OFFENCES :
Bailable offences are offences mentioned in the I schedule of the Indian Penal code as bailable offences. When any person accused for a bailable offence is arrested or detained without warrant by police officer or is brought before a Court, he must be released on bail, if a request for bail is made. In case of a bailable offence, bail is a matter of right . If such officer or Court thinks it fit, such person maybe released on a personal bond without sureties. If for any reason, the police doesn’t give bail, the arrested person must be produced before a Magistrate within 24 hours of arrest.
2.NON-BAILABLE OFFENCES
In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail. A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.
3. Anticipatory Bail :
If a person believes that he may be arrested for a non-bailable offence, he may apply to the High Court or Court of session for anticipatory bail i.e, in the event of arrest, he shall be released on bail. While granting anticipatory bail, the court may impose certain conditions in the interest of justice and to ensure that no obstructions are created on the path to justice. The accused may have to take the permission of the court before leaving the country. The anticipatory bail is valid during the whole proceedings of the case unless cancelled earlier.
PROCESS FOR SOLUTION…………Complaint Under which Section ?
Section 436 - 450
Whom to complain / where to complaint? ……
• The police officer himself grants bail in bailable cases
• The Magistrate grants bail in non-bailable cases
• The Court of session & High Court have special & wide powers to grant bail.
How to file the Case ? ……………………
• For non-bailable offences, apply to the concerned magistrate setting out the grounds for the grant of bail.
• In case the court is convinced that bail should be granted, it passes the order after hearing the arguments.
• At that stage fill in the bail bond duly signed by the surety and to be filed through his advocate. The surety takes the responsibility for producing the accused person in the court.
• The amount of every bond executed shall be fixed with due regard to the circumstances of the case.
• A High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application filed by the complainant or the prosecution.
• In case of a bailable offence, only the bail bonds must be filed. No application is required to be made.
What Next ? ………………………
• Where a person is released on bail he should make himself available to the police whenever they need him
• If he is released on a conditional bail, he must fulfill all the conditions
• If he refuses to comply with the conditions, the court will refuse any further applications for bail.
• A person released on bail by police must seek fresh bail from court.
ALTERNATE REMEDIES…………………………………
There are no Alternative remedies 
Format :
What should be written in the application?
In the application always mention the following things:
• Name :
• Offence for which he was arrested :
• Date of arrest :
• Address, years of residence and description of family :
• To whom the house belongs
• If a tenant, details of landlord:
• Place of work and other details:
• Mention whether arrested earlier or not, if not involved in any crime then mention it :
• Write " I promise that I will not abscond/mislead the witnesses/manipulate or destroy the evidences/whenever called I will appear before the court of Police Station."
• Request to be released on bail :
• Give Details like I Stay_____ ( place ) or I belong to ________ community. People from_____ Community know me very well therefore there is no apprehension of my absconding.
• This application should be placed before the magistrate on first hearing.
• It could be given either in writing or in oral.
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One thing to remember is after getting bail according to The Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 says that - Rule 30: When an accused is released on bail during investigation, he shall be bound over to appear in Court after the chargesheet is filed and summons served on him. It is not necessary to bind him to appear on any earlier date or dates. 

This rule is framed in almost every state which the High Court of that respective state enforces on ALL magistrates or criminal courts under it(their jurisdiction). Basically it dictates the code and procedure/guidance to be followed in the criminal courts. It derives its power from the Cr.P.C 477 and is notified. Hence, mandatory. 

I request the moderator to put this rule in the front page. Unnecessarily many people are attending court and many Magistrates are issuing Non-Bailable Warrants i.e exercising their powers ultra vires the rules. They are bound by it. This must be brought to the notice of the magistrate and if he does issue , then HC will give you respite even after chargesheet - dispense with appearance petition. These rules are mandatory and binding not directory on them but due to ignorance and prodding by opposite side lawyers to make arrest for all silly reasons. The fear of arrest is pervasive and must be resisted by all. 

There is a direction/order given by Justice Raja Elango of AP High COurt in one of the petitions warning the Magistrate in Karimnagar to not issue NBW's until chargesheet is filed in all criminal cases. It was commented that this is atrocious behavior of Magistrates and should be curtailed. It cannot be seen on net though. Don't know why. Transparency is lacking and one of the ways to deal is to fight for computerization of the courts. If we write letters to Chief Justices - maybe in 10 years it might be all computerized. 



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Bail before jail to protect a persons reputation says Supreme Court.
Here is one important point to be kept in mind with regard to anticipatory bail: The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

Here is the coverage from The Hindu
http://www.hindu.com/2009/07/24/stories/2009072461182000.htmThe Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds.
Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he 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. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation.
One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
Here is the judgment:
SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 2009
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The main conditions for AB i sthat you have to prove that you have
1> Roots in society and that you will comply with the investigation. Since it is a familial matter and that you are separated - there are chances of the wife filing a case on you.
2> Show the court that you will not abscond and are willing to put up a surety amounting to Rs 5000 or something like that.
3> Show the court that you have been threatened of false dowry harassment case on you and your entire family. AB will cost only Rs 12-20 as court fee. Your lawyer may charge you and is one of the main sources of income for many lawyers and advocates.
4> Mention in court if all else fails - that you be given atleast 7 days notice to comply with investigation and apply for regular bail at the minimum.
Read the recommendations of the law commission which were made in 2007.
File CRLP in High Court for Anticipatory Bail like as under:
Example: Petition under Section 438 of Crl. P.C. praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to direct the Station House Officer, XXX to release the petitioner on bail in the event of execution of Non Bailable Warrants issued against the petitioner in P.R.C.No. XX of 2008 on the file of Judicial Magistrate of First Class, Special Mobile Court, XXXX. See below information on using your AB to maximum use.
If the accused of 498a or any one is arrested as per record, because a person is in arrest even if he is released on Anticipatory Bail and his Life and Liberty is restricted and can has the Right to Information within 48 hrs u/s 7(1) of RTI Act.
You will also get replies within 48 hrs of your RTI application under life and liberty section. So this is a great new for all people arrested and this will really let the police think before unnecessory arresting innocent people as this may lead flooding with asking information within 48 hrs.

Regular Bail under U/s.437 and 439 Cr.P.C
See the link:what-is-anticipatory-bail/
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Here is an explanation of Anticipatory bail given by the
Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
  • 35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant 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 belief that the applicant may be so arrested must be founded on reasonable grounds.
  • Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
  • Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.
  • After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.
The four factors, which are relevant for considering the application for grant of anticipatory bail, are :
  1. The nature and gravity or seriousness of accusation as apprehended by the applicant;
  2. The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
  3. The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
  4. The possibility of the appellant, if granted anticipatory bail, fleeing from justice
  1. Anticipatory Bail Order For An NRI:
When Can A Person Apply For AB ?: When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him. He has the right to move the Court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
Conditions That May Be Imposed By The Court: The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
· A condition that the person shall make himself available for interrogation by the police officer as and when required;
· A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
· A condition that the person shall not leave India without the previous permission of the court.
Arrest: If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
Anticipatory Bail Not A Blanket Order: The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
Cancellation: An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Anticipatory Bail Not Available In Uttar Pradesh & Uttaranchal
Two-month-old Zoya Khan is perhaps the youngest person to get bail. Her entire family was accused by her step mother of harassment for dowry. Says lawyer Anil Bole: "Her stepmother Shakila lodged a complaint of dowry harassment against her father. In the complaint letter she is also mentioned as an accused."
Zoya's ordeal started last Friday when her stepmother filed the complaint. The Khans were summoned to the police station. Zoya spend over ten hours there with her biological mother before anticipatory bail was granted to them.
Says Zoya's mother Reshma Khan: "My daughter is two months old. I have to breast feed her in every ten minutes. If I am not around who ill take care of her." The police says the complaint letter mentions everybody, including Zoya. In their FIR, obviously, a minor Zoya is not an accused.
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Sample order:


Dated this the 16th day of July 2007

O R D E R
Application for anticipatory bail. The petitioners are the husband and step-mother of the husband of the de facto complainant. The marriage between the spouses took place on 13/2/2006. The petitioners face allegations under Section 498A I.P.C. A crime was registered inter alia under Section 498A read with 34 I.P.C on the basis of a private complaint filed before the learned Magistrate and referred by the learned Magistrate under Section 156(3) Cr.P.C. Investigation is in progress. The petitioners apprehend imminent arrest.

2. The learned counsel for the petitioner submits, the learned Public Prosecutor does not oppose the said prayer and I am satisfied that the petitioners can be granted anticipatory bail. In coming to this conclusion, the reality that if the petitioners were arrested and detained in custody, that would mar all possibilities of harmony in the marriage, does weigh with me considerably. No specific allegations of overt physical violence is made also.

3. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner.

i) Petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 23/7/2007. B.A.No.4312/07 2 ii) They shall be released on regular bail on condition that they execute bonds for Rs.25,000/- (Rupees twenty five thousand only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioners shall make themselves available for interrogation before the investigating officer between 10 a.m and 3 p.m on 24/07/2007 and 25/07/2007 and thereafter on all Mondays and Fridays between 10 a.m and 12 noon for a period of two months and subsequently as and when directed by the investigating officer in writing to do so. (iv) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to
arrest the petitioners and deal with them in accordance with law, as if these directions were not issued at all.

(v) If they were arrested prior to 23/7/2007, they shall be released from custody on their executing a bond for Rs.25,000/- (Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 23/7/2007.

1 comment:

  1. It is always good to behave better rather than be accused by court and be imprisoned. Wise words worth listening to.

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