Criminal Defence and Marital Litigation

How To Get Bail and Avoid Police Custody and Jail

अग्रिम जमानत कैसे पाएं और पुलिस हिरासत एवं जेल से कैसे बचें
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The criminal prosecution procedure in India follows the CrPC or Criminal Procedure Code of India. This procedural code specifies exactly the powers and duties of courts, lawyers, police, accused, and complainants. Amongst other things, it details out how somebody may be arrested, when he or she may be arrested, under what circumstances arrests are to be made, what procedure is to be followed at the time of arrest, and which officers have the power to authorise arrest. It also details out where the arrested person is sent after being arrested, whether to police custody (lockup in a police station), or judicial custody (jail). In cases u/s 498a/406/34 the accused may rightfully fear arrest.

Bail is another subject which is dealt with by the CrPC. Bail is a way in which an accused person may get temporary freedom until his case is finally disposed of. Depending upon the seriousness of the allegations, a person may be able to avoid arrest altogether, may be able to spend time only in police custody or only in judicial custody, or may not be able to get bail at all, until the disposal of his case. The CrPC lays out how a person may be granted bail, and the various types of bail.

Anticipatory Bail can be said to be superior to interim bail because the former is permanent unlike the latter. It is also superior to bail after arrest because unlike post-arrest bail, the accused does not have to spend even a single day in custody –until his case gets decided– if he gets an AB order in his favour. Indeed it may be argued that AB is the best legal relief for accused persons out of all types of bail. This applies to all criminal cases including dowry cases.

This bail is applied for in anticipation of arrest. If you have reason to believe that you may be arrested for a crime which you did not commit, then you have the right to apply for this type of bail. Such belief may come to your mind if you learn about a criminal complaint made to the police by your wife, or by any threats made by her family against you and your family (this second one should not always be taken seriously, but the first one should be).

As soon as you learn about the police complaint against you under section 498a/406/34, contact a good lawyer to apply for pre-arrest notice or notice bail, and anticipatory bail. These are two separate things but they are the same thing. Let me explain. Your lawyer will draft an anticipatory bail application mentioning your version of the facts of the case, and will apply at the appropriate district court. The matter will come up for hearing, and you should try to send somebody to be there with your lawyer when it comes up. The court will have sent a notice to the CAW cell or Mahila Thana or Women Cell, and their officer will appear on this date, along with a lawyer who represents the government, usually called a public prosecutor or a government pleader.

The public prosecutor will talk to the police officer, and he will tell the judge that since no FIR has been registered as yet, therefore there is no grounds for granting bail. The judge will seemingly agree with the PP, and will ask your lawyer what he has to say about this. Your lawyer will verbally withdraw the anticipatory bail application and will make an oral prayer for seven days' pre-arrest notice in case the police formulate an intention to arrest you or your family at some later date. The judge will grant this plea, and will pass an order telling the police to give you written notice seven days before they intend to arrest you, or your parents, or you and your parents separately. This is called notice bail commonly —however note that there is no definition of notice bail in the CrPC, nor any section of the CrPC which deals specifically with this type of relief.

If this bail application is rejected, then you can apply in the high court. If the High Court also rejects, then you can apply in the Supreme Court. Usually High Court grants this relief. You may have read somewhere that "bail is the rule, jail is the exception". What this means is that courts (read judges) have a bent of mind towards giving bail to all such accused who are not likely to be able to influence witnesses if set free during the pendency of their respective cases.

When the complaint is turned into an FIR, then the investigating officer will send you a notice of arrest. As soon as you get this notice, apply for anticipatory bail, following the same procedure which you used for notice bail. Note that both notice bail and AB are applied for u/s 438 of CrPC of India.

There are some criteria which need to be satisfied by your lawyer in your 498a case for grant of anticipatory bail. If your AB application is successful, then you have to carry out a few formalities before you are technically out on bail. The court may decide to impose some restrictions on you in its AB or Bail Order.

The fee for anticipatory bail and notice bail may be one lump sum, or it may be two separate amounts. The logic in favour of the first is that they are actually two steps of one process. People who follow the second option do it because they feel that they must pay for whatever is actually performed, and they should not panic and start paying for a step which may never occur. Lawyers usually offer a discount if you purchase a package containing both steps. The fee for the actual criminal case which follows the FIR is separate from the fee for anticipatory bail.

Stay On Arrest is a concept which in its effect is identical to anticipatory bail. This happens in states like Uttar Pradesh, which do not have any provision for anticipatory bail. A Stay is an order by a judge which keeps an order of a lower judge or of a layperson or of an officer of the law or of the government in abeyance until some legal point is adjudicated. A Stay On Arrest is an order which forbids the police from arresting you or your parents without the court's permission. The procedure for a Stay On Arrest is similar to the procedure for anticipatory bail. In UP people need to directly apply at high court level for this relief due to a legislated quirk in UP's version of the CrPC. This has the obvious effect of making police more powerful than is permissible in a functioning democracy.

Transit Bail is the bail that you need to get in order to avoid transit remand. If you are arriving from abroad and landing in your home town before heading for the place where the case has been registered against you, you may apply for this kind of interim relief in order to avoid being arrested until you reach that place to apply for anticipatory bail. This is usually needed if you have been made the subject of a look out notice, and (quite logically) you have not been able to obtain anticipatory bail so far. Details about remand are provided in another article on this website.

Regular Bail is the bail that you get after you have been arrested OR after the chargesheet is filed. It is often referred to without the prefix 'regular', and rightly so. This will be arranged for you by the lawyer who you engage to fight the case related to the FIR against you, be it dowry demand related or anything else. If you get AB, then there is no need for regular bail.

It is incorrect to think that regular bail is required after anticipatory bail. This sort of misunderstanding comes from the use of the word 'regular' in the context of ordinary bail. As most readers are aware, in India (as in most other countries) we use the term 'daily wager' or 'temporary worker' or 'probationer' for the kind of employee who has not yet cleared his probation, and 'regular employee' for someone who has cleared such probation. It is known to all that temporary employment and regular status are two different phases in the course of most full-time jobs. People sub-consciously draw a parallel from this context and decide that anticipatory and regular bails are two different types of bails, both of which are essential if one is to remain free pending a decision in the criminal case(s) against one. They could not be more mistaken. If you get AB, then there is no need for any further sort of bail until and unless there is a conviction in the lower court. This writer is not sure whether there was some mischief by some lawyers' lobby in using the prefix 'regular' instead of 'usual' or 'ordinary' or 'vanilla' bail.

One thing to note is that every bail order is a final order, which implies that the prosecution side cannot appeal against a bail order, and can only apply for cancellation of bail in an appropriate forum. It also means that any AB applicant is potentially liable to be arrested upon rejection of his application by any court at any level of the judiciary from the lowest court to the Supreme court. Does this mean that you should anticipate arrest upon rejection at the first stage itself? In this writer's humble opinion rejection of your bail application should not be taken to mean that you have no legal protection left, even if the rejection be at the highest court. This point merits a longer explanation. But let it be said that in law the terms 'liable' and 'potentially liable' are (potentially) liable to mean different things –not to mention that neither can be said to be synonymous with the term 'should'– before starting the explanation.

Remember that any officer who arrests anyone needs to satisfy the legal requirement laid down under section 41a of the CrPC –which enjoins the arresting officer to explain in writing all the reasons for arrest or non-arrest. Rejection of an anticipatory bail application does not absolve the arresting officer of this responsibility. Further note that if rejection of application would directly imply arrest then the whole category of accused persons by and large would be tempted to stop using their legal option of attempting to arrest their own arrest. Can society tolerate laws which cause people to avoid approaching courts? The answer is that laws which dissuade people from approaching courts have their use, but they cannot be countenanced in cases where individual liberty lies at stake. The third thing to note is that urgency of arrest increases with increase in the seriousness of any crime. The fact that police routinely arrests people accused of organised crime or murder or rape or under the NDPS Act after their first application is rejected (or even on their way to court to file their first application) does not mean that they are bound to feel any need to arrest anyone accused of dowry harassment or criminal breach of trust even up till or after (rejection at) the Supreme Court stage. Legally illiterate police personnel cannot of course be accounted for in the foregoing assertion.

Classification of Bail Types
Indefinite / "Permanent" Interim / Temporary
1) Anticipatory Bail / Advance Bail             1) Interim Bail before arrest
2) Regular Bail 2) Transit Bail
3) Indefinite Stay on Arrest 3) Temporary Stay on Arrest
   4) Notice Bail / Mandated Notice of Arrest
   5) Interim Bail due to Sickness
   6) Interim Bail due to Family Reasons
   7) Interim Bail due to Assembly Session etc. ad nauseam

A second anticipatory bail application in the same forum as the first one is generally not maintainable unless there has been a material change in the circumstances of the case since the filing of the first application [1][2]. Bail after arrest is a different matter, and sometimes the number of bail applications goes out of control. This is not always at the applicant's initiative, as can be seen in Teesta Setalvad's case. Her anticipatory bail SLP was heard by three different Supreme Court benches due to reasons which were explained by some apex court judges in terms which might not be considered very clear by all! [3]

(AB Provisions in Neighbouring Countries — In Pakistan and Bangladesh, section 498 of Pakistani CrPC [4] and section 498 of Bangladeshi CrPC [5] respectively, are the sections governing AB).
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Sources:


1)Prosenjit Sarkar vs Unknown on 10 December, 2014; Indiankanoon.org; Calcutta; Undated

2)Utpal Sharma vs State Of Assam on 27 February, 2004 Indiankanoon.org; Gauhati; Undated

3)THE CURIOUS CASE OF TEESTA’S BAIL PETITION Singh, R.; The Daily Pioneer; Delhi; 25th March 2015

4)Pakistan Law on Pre-Arrest bail, section 498 of CrPC; A Comprehensive Portal about Pakistan; Location of publication not provided; 29th October, 2010

5)A General Study on Bail under the Crpc and other laws; Section 496 Blog; Dhaka; 9th May, 2014




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Published by Manish Udar

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Last Updated on 16th April 2018


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