The Criteria for grant of Anticipatory Bail in 498a

498a में अग्रिम जमानत आदेश हेतु मानदंड
When you apply for anticipatory bail after receiving notice of arrest, as described in the detailed article about anticipatory bail procedure in 498a cases, you will have to let your lawyer draft the bail application in a manner similar to the application which was drafted for notice bail. यह ज़मानत आवेदन लगभग हूबहू आप के उस नोटिस ज़मानत आवेदन जैसा ही होगा, जिसका विस्तृत वर्णन आप अग्रिम ज़मानत सम्बंधित इस लेख में देख सकते हैं.

An acceptable definition of anticipatory bail is "bail obtained before being formally arrested". Such bail is granted under section 438 [1] of the CrPC of India.

Note that all pre-arrest bail is "bail obtained before being formally arrested", but not all pre-arrest bail is anticipatory bail. Section 437(1) of CrPC can be used by courts which constitute the lowest rung of the judiciary to grant pre-arrest bail under certain circumstances (see long quote below this paragraph), but an AB application does not precede such pre-arrest bail.

It can be granted only if the judge is satisfied that all the conditions which are necessary for such relief have been met by you. This is not a very steep requirement for a law abiding citizen, and if you have a good lawyer and you are good at managing your lawyer then you do not need to worry at all.

Section 437(1) of CrPC: When bail may be taken in the case of non-bailable offences: [2]

(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.

Section 438 of the CrPC too gives one amongst the several in vogue definitions of anticipatory bail in its title, to wit, anticipatory bail is a "Direction for grant of bail to person apprehending arrest". Section 438 is reproduced hereunder.
Section 438 of CrPC: Direction for grant of bail to person apprehending arrest: [3]

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 would however be a good idea to remain present at the lawyer's office in order to provide your valuable inputs while the bail application is drafted, Also make sure that you keep in touch with your lawyer and that he informs you about the date of hearing of your bail application as and when he learns about it. It is a good idea for you to go to the court on the appointed day, just to be present while the lawyer makes his arguments, and to make sure that the lawyer is actively pursuing your case.

The judge will see how sharp and active your lawyer is. He may also read your bail application and may note the pertinent points, but very often judges do not bother to read the application in detail for small matters. A 498a anticipatory bail application is not a major matter for the judge with whom you are going to deal, because such applications can only be made to judges of sessions courts or high courts, and these judges are VIPs, especially High court judges, who deal with ministers and industrialists as a matter of routine.

The judge will consider whether you are a person who has some social standing. If you are a loafer or illiterate or a person with a bad reputation, then he will not give you anticipatory bail. There is a popular Hindi saying that it is worse to be considered a bad person than to just be a bad person. Do not think that you will get away in a situation where you are considered by your neighbours or by society to be a layabout just because the judge does not know you personally. In innumerable cases wives hire their own lawyers to assist and reinforce the prosecution, and this lawyer will do his best to make the judge feel that you are good for nothing.

Anticipatory bail cannot be granted to a person who has previously been convicted of an offence which carries a punishment which may exceed 7 years. Please note that this definition is slightly different from one involving an offence whose minimum punishment is 7 years or whose minimum punishment is more than 7 years. The bar is much lower than you would be comfortable with in case you have been convicted in a criminal case previously.

AB also cannot normally be granted to a person who has been convicted at least twice in the past for offences which are cognisable and non-bailable. However the judge has the power to grant the desired relief to such persons by stating and recording special reasons for doing so.

Similarly, if the judge believes that you have prima-facie committed an offence which is punishable with life imprisonment or death sentence, then he will refuse you bail. (There are exceptions to this rule, but they are made only in the case of women, sick/disabled/infirm/old persons, and children under 16. You do not fall into any of these categories quite obviously, except possibly the sick/disabled/infirm category). This is relevant here because although 498a is not punishable by life imprisonment, it is sometimes filed in conjunction with dowry death, and now it is slowly becoming a fashion that it is filed in conjunction with the offence of unnatural sex or rape plus bigamy. Usually such allegations do not reach the chargesheet stage, but they are an irritant in the anticipatory bail hearing.

Also note that the judge has to record his reasons for granting anticipatory bail to you, and he has to do so in writing. No judge will give relief to you unless your lawyer convinces him with cogent reasons which look good in writing if read by a superior judge. Although the judge knows the law better than your lawyer, it is your lawyer's job to convince the judge –otherwise there would be very little need for lawyers. The judge knows that anticipatory bail is a significant relief for the accused in 498a cases, and that the lawyer should earn this relief for his client. जज को मालूम है की अग्रिम ज़मानत किसी भी ४९८अ आरोपित व्यक्ति के लिए खासी राहत है, और वकील को अपने मुवक्किल के लिए यह राहत वास्तव में अर्जित करनी चाहिए।

There is a proviso if you will to the above mentioned warning about inclusion of crimes more serious than dowry harassment in the list of allegations. Allegation of an offence does not imply prima-facie guilt. Often one reads about anticipatory bail applications being rejected by judges because of 'the seriousness of accusations'. This logic does not wash, in this writer's humble opinion. Any fool can accuse any angel of any serious crime. It is a pitiful state for a society to find itself in if seriousness of accusations makes people lose their liberty. Further, can we call accusations made by any random non-serious person serious even if we were to accept that seriousness of allegations is a potential grounds for dismissal of a bail application? This is an urgent question considering the fact that we are living in the age of baseless and spontaneous internet attacks on the bonafides of persons, groups and even entities as large as entire religions.

Note that although anticipatory bail under section 438 of the CrPC is an extraordinary power of the sessions courts and high courts, there is a Supreme Court decision to the effect that this by no mean implies that this power is to be used only in rare cases [4]. Also note that if the judge considers you to be the sort of person who will not intimidate witnessses, and not try to abscond in the event of being let free on bail, then you will be granted AB, regardless of the seriousness of the allegations.

The judge will also consider whether you are the sort of person who is likely to tamper with the evidence. The prosecution will try to convince him that this is a very real possibility, and it is your lawyer's job to prove that you are not this sort of person, and that you do not have the desire or even the ability to try to tamper with the evidence. The CBI has filed for cancellation of Sanjay Chandra (of Unitech)'s bail in the 2G scam case just because he has been considered to have tried to tamper with the evidence and to influence the investigation and the prosecution.

This brings us to the next possible objection which can be made by the opposing lawyer. He will try to convince the judge that you are likely to try to influence the investigation or the prosecution in the event of your release on bail. As a law-abiding citizen with no criminal record it will be very easy for you to disprove this allegation. Tell your lawyer to deal very severely in the courtroom with any prosecution which dares to lay such dirty accusations against you. If your lawyer shows the least reluctance to calmly tear into the prosecution, the judge may deny you anticipatory bail on such grounds.

Similarly, the opposition lawyer will try to convince the judge that you are likely to threaten or influence or harm the witnesses or the complainant in the event of not being taken into custody. This is another allegation which is designed to infuriate you and thereby make you prone to making a mistake. A clever lawyer will deal adequately with the prosecution in the event of such an accusation, and he may say that the prosecution is just wasting the precious time of the court by making one baseless allegation after another in a non-stop fashion.

A similar criterion which has to be satisfied in case the prosecution raises it is that there should be no danger (in the judge's mind) of you committing any further offence if you are not taken into custody. Here again your spotless record will help you in convincing the court about your credentials.

The judge will be more inclined to grant anticipatory bail to your parents and your sister if they are accused, than to you. This is the law. (This is not to say that he will be disinclined to grant you relief). Also, young persons, sick persons, disabled persons, feeble persons, pregnant ladies are some other categories which are always given anticipatory bail unless there is some very serious evidence against them. This is not to claim that the court will examine the evidence in detail at the anticipatory bail stage. It will just see things with a view to establish prima facie findings.

Another thing which has the potential to complicate your quest for anticipatory bail is the possible presence of a medico-legal report in the hands of your wife recording injuries to her body while she was living with you. In such situations lawyers have to resort to discrediting her and denigrating her trustworthiness in front of the court right from the word 'go'.

Similarly if there is evidence of bank transactions showing significant sums of money transferred from your in-laws to you or your parents then the effort to get anticipatory bail can become protracted.

The investigating officer will invariably claim that your custodial interrogation is necessary for a fair investigation. This is such a childish demand parroted by every dilettante that defence lawyers enjoy such attempts from the prosecution side, just because they give them an opportunity to make the prosecution appear incompetent.

No previous case can have an impact on bail proceedings, because every bail application is dealt with on the basis of facts and circumstances of its case. This fact has at least two ramifications. One is that bail applications can be made repeatedly by the same person in the same case at the same or different judicial level(s). Another is that a number of commonly quoted cases in reality have zero value insofar as approval of bail in various individual bail applications are concerned. This includes [Arnesh Kumar vs. State of Bihar and Anr., 2014 (8) SCC 273] as well as [Souda Beevi vs. Senior Inspector of Police, 2011 (4) KLT 52 : 2011 (3) KLJ 796 : 2011 (3) KLD 483].

You may also wish to read about formalities including bail bond, sureties etc. after AB. मुचलकों, ज़मानतियों आदि सम्बंधित खानापूरी के बारे में जानने के लिए ये लेख पढ़ें।


1) untitled; delhi; 14th February 2012
2) Section 437 in The Code Of Criminal Procedure, 1973; Delhi; Undated
3) CrPC 438: Section 438 of the Criminal Procedure Code Kaanoon: Legal advice online in India; Delhi; undated
4) Savitri Agarwal & Ors vs State Of Maharashtra & Anr on 10 July, 2009; Delhi; Undated

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Published by Manish Udar

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Last updated on 22nd February 2017
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