An introduction to Anticipatory bail
Anticipatory bail is a unique type of bail in which a judge grants a bail to an applicant even before his/her arrest to protect them from getting arrested or to offer the applicant a legal protection from getting arrested.
If a husband and his relatives accused of 498a, apply for anticipatory bail and get succeeded in getting it, then they are legally entitled to release on bail at the time of the arrest. As a result, they will not be arrested or taken into custody even for a single minute until the final verdict of their trial in court. However, their bail may be canceled by the same court or a higher court.
To mention things in a proper way, bail is often defined as, “a pledge of cash or property to secure the release of a thing or person which would otherwise be held in custody.
An anticipatory bail order too is definable only with the expending of some effort, and we can say following the foregoing discussion that it is an order passed by a competent court in the course of any specific criminal matter within whose context the bail application in question was made, instructing law enforcement authorities to either not arrest any specified accused bail applicant (s), or to release him/her/them upon payment of bail at the time of arrest in such criminal/non-criminal matter.
Courts whereat Anticipatory Bail Applications are Judicially Examined
Before moving ahead to ‘what happens after Anticipatory bail’, what happens if your anticipatory bail application is rejected by the lower court? In such a case, you will need to approach the high court of your state. Have you ever noticed why is it common to read or hear about High Court bail applications and exceptionally about Supreme Court bail applications?
The reason is that most bail applications are heard and decided by the High Court level itself. Since High Courts are legitimately established constitutional bodies as the Supreme Court, these courts, therefore, have immense powers to grant bail even in the most complicated/sensitive/serious types of cases. However, it’s an entirely different matter that bail in well-known cases has been reduced to a spectacle for public gossiping or enjoyment.
Different Arrest Procedures after a favourable AB Order
In general, the investing officer decides to arrest the husband first, and then sends him a notice of arrest, in case the husband has obtained notice of bail. The anticipatory bail order is granted as a result of the anticipatory bail application filed by the husband in the court upon receipt of notice of arrest sent by the investigation officer (IO) to him.
In most such cases, the investing officer doesn’t feel the need to arrest the relatives (parents) of the husband at all. While in some cases of 498A, he opts for arresting the relatives (parents) of a husband after arresting him. Most often, he decides to arrest all the alleged members of the family including the husband to save his/her time that he might have to spend in arresting the other family members of the husband.
Sometimes, the accused doesn’t go for notice bail instead he applies for anticipatory bail only when he gets to know that an FIR has been ordered to be filed by the SHO of the Mahila Police Station after the negotiation process before the FIR has collapsed. It is also a notable fact that the investing officer is not obliged to give any notice before arresting the accused in the cases of 498a.
He may decide to give notice or issue summons, but how he does it is completely his prerogative in the absence of any relevant court order. Commonly, accused persons approach their concerned police station for the completion of required formalities if they have got a favorable AB order.
In Delhi, if 498a is filed against a man, the Investigation officer (IO) has to take permission from a DCP-level officer before arresting the person in case of no serious circumstances, and no serious violations have been found. This provision is also applicable in those other cities where there is a Police Commissionerate System.
Apart from them, in the case of other cities which are numerous in all states, permission from an officer of the rank of Superintendent of Police is required to make an arrest. This process of seeking permission usually takes time and thus favors an accused as he can apply for anticipatory bail before his arrest. However, if the matter is serious then the accused can be taken into custody without seeking the approval of the higher officers or authorities. In order to avoid arrests, the lawyers suggest the accused to go underground until his/their anticipatory bail application is being taken into consideration or grant of bail. They do it sometimes to protect their clients from getting arrested and sometimes for their own reasons.
Sometimes the investigation officer will first interrogate the accused persons after filing the FIR and will decide further whether there is a need to arrest the accused and/or his relatives. However, the IO doesn’t have the legal power to arrest the accused if he has succeeded in obtaining anticipatory bail.
Types of Bail Security
In the condition if anticipatory bail has been granted to the accused, he will get summons from an IO to be present at the police station on the mentioned date with people who are willing to stand surety for him, and also to be ready with the bail amount. He is also informed that he and his sureties will have to undergo a process of signing a bail bond (also called surety bond) followed by submitting cash or equivalent security.
what is a bail bond that is required to be signed by the accused and his sureties?
A bail bond is a document in which the surety and the accused sign that they are ready to forfeit the bail amount- and suffer other legal consequences as per the judge’s order- in the case the accused does not appear in court whenever he is required to do so by law or by order of the judge. As per the norm, an accused requires one bail bond.
Similarly, one surety per person is the norm except in UP and Bihar. In these two states, there is a provision for 2 sureties per person, and standing surety has come up as a business. In other states, it is the lawyer who arranges for people to stand for surety whereas people are not able to arrange for any person to stand for them as surety.
There is another way to pay forfeitable cash or security instead of a surety. In some rare cases, the police might ask for a separate judicial order ordering the same; the Police do it only to harass the accused as a separate judicial order is not required in such a situation and the police is authorized to take cash or equivalent security.
However, they can’t proceed to arrest any accused if he has been given anticipatory bail by a Court. However, it should also be noted that the same person cannot stand surety for more than one of the various accused persons in any individual criminal matter.
Bail Amounts Explained: How Judges Decide and What It Means for You
The bail amount is decided by the Judge. Sometimes the judge may order the accused to deposit cash bail. Sometimes he may ask for a fixed deposit voucher cum receipt to be deposited. In some cases, the judge may allow the release of the accused from custody simply on his own recognizance, without paying any bail amount only on the basis of the respect he has been known to enjoy in society.
Bail on recognisance is also known as bail on furnishing personal bond, and it’s only seen in cases if the accused has worked for a longer period in some respectable profession in the society i.e. army or armed forces, medical or teaching field, etc.
In some cases, a judge may ask for a property to be kept as security for the bail. In the case where the accused doesn’t appear in the court or the place specified by the judge or by the law, then the aforementioned property belonging to the accused can be seized and sold by the court. This is a kind of foreclosure without any debt availed of.
In many cases, it has been found that poor people can’t afford the bail amount. Due to this, we all have seen many cases in which people have spent years in jail due to the unaffordability of bail amount. In such cases, the Supreme Court has ordered that such people should be released based on their personal bond, which (as mentioned above) means that no bail amount will be charged to them.
If somebody is not able to arrange bail money within one week of the grant of the bail order, in that case, he or she is deemed indigent and according to law, he/she should be released without paying any amount. However, more often such people don’t get released due to the corruption in the country. But this set of laws doesn’t apply normally to people who applied for anticipatory bail. The reason is, anticipatory bail is invariably applied for by people who are neither bankrupt nor too poor to afford a matrimonial lawyer.
Sometimes, the judge may also order to release the accused on the citation, which means in this form of release, the IO will summon the accused to the police station. Afterward, he will say “You are Under Arrest” to the accused. Then, he will allow the accused to go after this citation. It is a form of symbolic arrest.
Once you are granted anticipatory bail, it is presumed that you will be on bail till the completion of the trials of your case. Sometimes after filing of the charge sheet, the court may ask you to take bail once again. But that’s a formality.
Anticipatory bail is good as it protects individuals from unjustified arrest, ensuring their freedom while legal processes unfold. However, it may be misused by some to escape immediate custodial interrogation, making it controversial in certain cases.
If anticipatory bail is rejected in a 498A case, the accused may be immediately arrested. They must then approach a higher court, like the High Court or Supreme Court, for regular bail to avoid detention.
Once anticipatory bail is granted, the accused must follow court-imposed conditions such as regular appearances and non-interference with the investigation. If these conditions are violated, it can lead to cancellation and possible arrest.
Yes, anticipatory bail can be dismissed by the court if the accused breaches the set conditions, fails to cooperate in the investigation, or if new, serious evidence against them emerges, making continued bail inappropriate.
An FIR is not mandatory for filing anticipatory bail; it can be filed if there is an apprehension of arrest based on a complaint or threat of an FIR. The fear of arrest must be genuine and reasonable for the court to consider.
Usually, anticipatory bail is valid until the charge sheet is filed, or investigation is completed. To extend bail till the end of trial, the accused may need to seek regular bail or comply with the trial court’s directions.
The anticipatory bail amount is generally non-refundable as it is meant to ensure compliance. However, any security deposits or guarantees may be returned once the case concludes, depending on the court’s order.
Conclusion
There is a common misconception about bail is that ‘bail’ is a legal procedure in which an accused is set free. It is not true! However, the matter of fact is that it’s quite the opposite.
A ‘bail’ is a sophisticated and excellent guarantee that the accused will not run away. The reason is that the people who have presented as sureties for him are close people to him and won’t let him run away or at least they will have the information of the person on bail about his whereabouts as they are at risk of being punished financially or losing their freedom.
After getting Anticipatory bail, should the accused visit the Investigating officer with sureties without waiting for his summons on charges 420, 468, 471 IPC?
Let the summons be issued