After receiving an arrest notice, if you seek anticipatory bail in a 498a case, as outlined in the comprehensive guide on the process, your lawyer will need to prepare the bail application in a similar manner to the notice bail application. Anticipatory bail is a form of pre-arrest bail, which is granted under section 438 [1] of the CrPC of India. However, not all pre-arrest bail is anticipatory bail; lower courts may grant pre-arrest bail under certain circumstances, as permitted by section 437(1) of CrPC. The grant of anticipatory bail is contingent upon the satisfaction of all necessary conditions by the petitioner, which should not be difficult for a law-abiding citizen. With the assistance of a competent lawyer and effective communication, obtaining anticipatory bail should not be a cause for concern.
Section 437(1) of CrPC: When bail may be taken in the case of non-bailable offences:
(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released…
…and gives an undertaking that he shall comply with such directions as may be given by the Court.
In its title, Section 438 of the CrPC also provides one of the many definitions of anticipatory bail as “a direction to grant bail to a person who fears arrest.” The section is reproduced below for reference.
Section 438 of CrPC: Direction for grant of bail to person apprehending arrest:
Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely-
the nature and gravity of the accusation;
the antecedents of the applicant including the fact…
…he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section.
It is advisable to be present at your lawyer’s office while your bail application is being drafted, so that you can offer your valuable input. It is also important to maintain communication with your lawyer and ensure that they inform you of the date of the bail application hearing as soon as they are aware of it. Attending court on the scheduled day to support your lawyer during their arguments and to ensure they are actively pursuing your case is also recommended. The judge will assess your lawyer’s performance, as well as read your bail application and take note of the relevant points. However, for minor issues, judges may not scrutinize the application in great detail. It is worth noting that an anticipatory bail application under Section 498a can only be made to judges of the sessions or high court, who are regarded as important figures and regularly handle cases involving ministers and industrialists.
The judge will take into account your social standing when deciding whether to grant anticipatory bail. If you are viewed by society or your neighbors as a layabout or have a bad reputation, it is unlikely that the judge will grant you anticipatory bail. In many cases, wives hire their own lawyers to assist the prosecution and may attempt to paint you in a negative light. Remember the Hindi saying, “It is worse to be considered a bad person than to just be a bad person.” Do not assume that the judge’s lack of personal knowledge about you will necessarily work in your favor.
Anticipatory bail cannot be granted to individuals who have previously been convicted of an offense that carries a punishment exceeding 7 years. It’s worth noting that this definition differs slightly from one that pertains to offenses carrying a minimum punishment of 7 years or more. If you have a previous criminal conviction, the threshold for granting anticipatory bail is lower than you might expect.
In addition, a person who has been convicted at least twice in the past for cognizable and non-bailable offenses is typically not eligible for AB. However, a judge can use their discretion to grant anticipatory bail to such individuals if they state and record special reasons for doing so.
The judge’s decision to grant anticipatory bail also depends on the nature of the offence you are accused of committing. If the judge believes that you have committed an offence punishable by life imprisonment or the death sentence, he will likely refuse to grant you bail. However, there are exceptions to this rule for women, children under 16, and those who are sick, disabled, or infirm. Since you likely do not fall into any of these categories, it is important to note that such offences may be filed in conjunction with 498a, which can complicate the anticipatory bail hearing.
It is essential to understand that the judge must provide written reasons for granting anticipatory bail. Your lawyer’s job is to convince the judge with well-reasoned arguments that can hold up under scrutiny from a superior judge. While the judge may have a better understanding of the law than your lawyer, it is your lawyer’s responsibility to persuade the judge. The judge understands that anticipatory bail is a significant relief for the accused in 498a cases, and therefore, the lawyer must work hard to earn this relief for his client.
The warning given about including more serious crimes than dowry harassment in the list of allegations has a proviso. Allegations of an offense do not imply prima facie guilt. Often, judges reject anticipatory bail applications due to the “seriousness of accusations,” which is not a valid argument. Accusations made by non-serious individuals should not be taken seriously, especially in the current age of baseless and spontaneous internet attacks on individuals and entities.
While anticipatory bail under Section 438 of the CrPC is an extraordinary power of the sessions courts and high courts, a Supreme Court decision clarifies that this power is not to be used only in rare cases. Additionally, if the judge considers you to be a person who will not intimidate witnesses or attempt to abscond in the event of being granted bail, you will be granted AB regardless of the seriousness of the allegations.
The judge will take into account whether you are inclined to tamper with the evidence. The prosecution will attempt to persuade the judge that this is a genuine possibility. On the other hand, it is the responsibility of your lawyer to establish that you are not likely to tamper with the evidence, nor do you have the desire or ability to do so. Sanjay Chandra, of Unitech, had his bail in the 2G scam case cancelled by the CBI because he was believed to have attempted to tamper with the evidence and influence the investigation and prosecution.
The opposing lawyer may argue that you are likely to attempt to influence the investigation or prosecution if you are released on bail. As a law-abiding citizen with no criminal history, it should be straightforward for you to refute this accusation. Tell your lawyer to deal firmly with any prosecution that makes such baseless allegations against you in court. If your lawyer is hesitant to confidently challenge the prosecution, the judge may deny you anticipatory bail on these grounds.
The opposition lawyer will try to make the judge believe that you will threaten, influence, or harm the witnesses or complainant if you are not taken into custody. This is meant to anger you and make you more susceptible to making a mistake. A skilled lawyer will adequately deal with such accusations and may argue that the prosecution is wasting the court’s time with baseless allegations.
Another criterion that the prosecution may raise is that there should be no danger of you committing another offense if you are not taken into custody. Your clean record will help you convince the court of your good character and lack of risk.
The judge may be more inclined to grant anticipatory bail to your family members, such as parents or siblings, if they are accused. However, this does not mean that the judge will be unwilling to grant you bail. Additionally, there are other categories of individuals, such as young people, sick or disabled people, feeble individuals, and pregnant women, who are typically granted anticipatory bail unless there is significant evidence against them. At this stage, the court will only establish prima facie findings rather than examining the evidence in detail.
When seeking anticipatory bail, a medico-legal report documenting injuries to your wife while living with you can complicate the process. In such cases, lawyers may need to discredit her and attack her credibility in court.
Similarly, evidence of large sums of money transferred from your in-laws to you or your parents can prolong the process of obtaining anticipatory bail.
The investigating officer may argue that custodial interrogation is necessary for a fair investigation, but defense lawyers often relish such attempts because they give them the chance to expose the prosecution’s incompetence.
In the realm of bail proceedings, previous cases hold no bearing on the outcome of a current application as every bail request is evaluated on the unique facts and circumstances of its case. This fundamental principle has two significant implications. Firstly, a person can file multiple bail applications in the same case, regardless of whether it is at the same or different judicial levels. Secondly, various well-known cases cited in bail applications do not necessarily carry weight in the decision-making process. For instance, cases such as [Arnesh Kumar vs. State of Bihar and Anr., 2014 (8) SCC 273] and [Souda Beevi vs. Senior Inspector of Police, 2011 (4) KLT 52 : 2011 (3) KLJ 796 : 2011 (3) KLD 483] have no relevance in the approval or denial of bail for an individual case.