mehnatExplanation and definitions: Anticipatory bail order & anticipatory bail
Top of PageSo you have got anticipatory bail. But what exactly is anticipatory bail?
When the judge passes an order granting anticipatory bail to a bail applicant, he writes in his order that the applicant should be released on bail immediately upon arrest. If a 498a accused husband and his parents apply for anticipatory bail and get it, then they will be entitled to be released on bail at the time of arrest. As a matter of fact they will not be arrested at all and will not have to spend a single minute in custody until the conclusion of their trial in the lowest court, unless their bail is cancelled by the court which granted bail or by a court which is higher than the court which granted bail. (In the adverse case the litigant gets caught up in the bail circus which is commonly seen in Indian courts.)
Note the difference in the three descriptions, release "upon arrest", "at the time of arrest", and "they will not be arrested at all" in the three sentences which precede this sentence. The third description of AB (provided by this humble writer) is the correct one.
To state things in an ordered fashion, bail is defined as, "a pledge of cash or property in order to secure the release of a thing or person which would otherwise be held in custody." [3] Anticipatory bail can only be defined by going through some verbal acrobatics, and in reality is a phrase concocted thoughtlessly.
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 (before the applicant(s) has / have been arrested) by a competent court in the course of any specific criminal matter (or non-criminal matter in which criminal liability has arisen) 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.
Now we can go ahead with providing the definition of AB in one sentence. Anticipatory bail is a pledge of cash or property –made after a successful application– which enables its obtainer to not be arrested at all, and to not spend absolutely any amount of time in police or judicial custody until the conclusion of his / her trial.
High Courts normally the highest courts whereat AB applications are judicially examined
Top of PageBefore we discuss what happens after AB, consider for a moment what happens if your anticipatory bail application is rejected by the lower court. You will need to obviously approach the high court of your area. Why is it that we so commonly read about high court bail applications and so rarely about Supreme Court bail applications? The answer lies in the fact that most applications are decided at the high court level itself. High courts are as legitimately established constitutional bodies as the Supreme Court– the former having been established under Chapter V of Part VI of the Constitution of India [1], and the latter under Articles 124 to 147 of the same document [2]. High courts therefore have immense powers to grant bail even in the most serious types of cases. It is entirely a different matter that bail in well known cases has been reduced to a spectacle for public enjoyment.
Various arrest procedures after a positive AB order
Top of PageNormally the investigating officer decides to arrest the husband first, and sends him notice of arrest, in case the husband has obtained notice bail. The above mentioned anticipatory bail order comes as a result of the anticipatory bail application filed by the husband in the court upon receipt of notice of arrest sent by the IO. The whole notice bail and AB procedure is explained in detail on this page.
In many cases the investigating officer does not try to arrest the parents of the husband at all. In some cases he decides to arrest them much after he decides to arrest the husband. Very often he decides to arrest them all together to save himself from a repeated headache cum paperwork situation.
Sometimes the accused does not apply for notice bail at all and opts to apply for anticipatory bail only after he learns 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. Note that the investigating officer is not obliged to give any notice before deciding to arrest the accused in such a case. He may decide to give notice or issue summons, but how he goes about it is entirely his prerogative in the absence of any relevant court order. Usually accused persons themselves approach the concerned police station for required formalities if they have obtained a favourable AB order.
In Delhi, permission from a DCP level officer is necessary to arrest anyone in ordinary 498a cases where there are no serious circumstances, and where no serious violations have been reported. The same provision exists in those other cities which have a police commissionerate system. Other cities –which are found in large numbers in all states– have a requirement for permission from an officer of the rank of Superitendent of Police. The process of getting this approval takes time, and during this time the accused person can apply for anticipatory bail. If the matter is serious then arrest(s) can be made without seeking the approval of high officers too. Sometimes lawyers tell the accused to go underground while his / their anticipatory bail application is being heard. They do this sometimes with the welfare of their client(s) in mind, and sometimes for their own reasons.
Sometimes the investigating officer will interrogate the accused persons after the filing of the FIR, and will usually thereafter decide whether or not any of them need to be arrested. But the IO does not have any power to arrest if accused persons have obtained a favourable AB order.
Bail bonds and types of bail security
Top of PageIn the first described case where anticipatory bail has been granted, the IO sends a summons to the husband's home to present himself at the police station on a particular date with people who are willing to stand surety for him, and to be ready with the bail amount. He also is informed that he and his sureties will have to sign a bail bond (also called a surety bond), and submit cash or cash-equivalent security.
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 case the accused does not appear in court whenever he is required to do so by law or by order of the judge. One bail bond per accused person is the norm. Similarly one surety per person is the norm except in UP and Bihar where 2 sureties per person are usually required, and where standing surety has become a business according to reliable sources. In other states also it is lawyers who arrange people to stand surety where people are unable to arrange any person to stand surety for themselves. Another way is to pay forfeitable cash or security instead of a surety, in which method in rare cases the police just to harass the accused might ask for a separate judicial order ordering the same, although strictly speaking a separate judicial order is not required in such a situation and the police is authorised to take cash or cash-equivalent security. Of course they will not proceed to arrest any accused once an AB order has been passed by a court.
Further note that the same person(s) cannot stand surety for more than one of the various accused persons in any individual criminal matter.
The amount of bail 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. Sometimes the judge may let the accused be released from custody simply on his own recognisance, which is to say without the payment of any money, and just on the basis of the respect which the accused is known to enjoy from members of society. Bail on recognisance is also called bail on furnishing personal bond, and this can happen if the accused has worked long in some respectable profession viz. teaching, medicine, armed forces, etc.
Sometimes a judge may ask for a property to be kept as security for the bail. In case the accused does not appear before the court or any other place required by the judge or by the law, then the aforementioned property can be seized and sold by the court. This is a kind of foreclosure without any debt being taken.
Many times it has been observed that poor people are not able to pay the bail amount. There have been cases where people have spent years together behind bars because of insufficiency of funds. The Supreme Court has ordered that such persons should be released on their personal bond, which (as mentioned above) is to say that no money should be charged from them. If somebody is unable to arrange bail money within one week of the bail order, then he or she is deemed indigent and by law he should be set free without having to pay any money, though more often than not such persons are not set free due to corruption in India. This provision does not normally apply to people who get anticipatory bail because anticipatory bail is invariably applied for by people who are neither bankrupt nor too poor to afford a lawyer.
Sometimes the judge may order that the accused be released on citation, which is to say that the IO will summon the accused to police station, then he will say "you are under arrest" (like the policemen in Bollywood films) to the accused. Then he will let the accused go after making this citation ("you are under arrest"). This is nothing more than a symbolic arrest.
Various CrPC forms utilised in procedures after AB orders
Top of PageThree forms of the CrPC are generally used by the authorities in the immediate period after an accused person has been admitted to bail. These are:–
1) Form no. 3: Bail and Bail Bond after Arrest Under a Warrant [4].
2) Form no. 28: Bond and Bail Bond on a Preliminary Enquiry before a Police Officer [5].
3) Form no. 45: Bond and Bail Bond for Attendance before Officer-in-Charge of Police Station or Court [6].
A fourth form may be used to take coercive measures against a surety including and upto his / her arrest. This is usually done in the event of the person who he has stood surety for jumping bail, and if the amount of the bail bond cannot be recovered by sale of his movable property. This form is Form no. 51: Warrant of Commitment of the Surety of an Accused Person admitted to Bail [7].
Conclusion
Top of PageMany people think that bail is a kind of setting free of the accused. This is not true at all. As a matter of fact it is quite the opposite. Setting free and releasing on bail are two different concepts. Bail is a sophisticated and excellent guarantee that the accused will not run away. This is so because the sureties are people who are close to the accused and they will not let him run away, or they risk being punished financially or in terms of losing their freedom.
You may also wish to read an article about the importance of anticipatory bail in dowry cases.
previous article (about the criteria for AB in cases u/s 498a / 406 / 34) / हिंदी में (दहेज़ मामलों में अग्रिम ज़मानत के मानदंडों के बारे में लेख)।
next article (about conditions and restrictions in anticipatory bail orders) / हिंदी में (अग्रिम ज़मानत आदेश में संभावित शर्तों के बारे में लेख)।
Sources:
1) Constitution of India: Chapter 5 of Part VI; Constitution Society; Undated
2) The Union Judiciary; Constitution Society; Undated
3) Glossary of Legal Terms beginning with 'B'; Duhaime's Law Dictionary; Undated
4) Form no. 3: Bail and Bail Bond after Arrest Under a Warrant; www.vakilno1.com; Undated
5) Form no. 28: Bond and Bail Bond on a Preliminary Enquiry before a Police Officer; www.vakilno1.com; Undated
6) Form no. 45: Bond and Bail Bond for Attendance before Officer-in-Charge of Police Station or Court; www.vakilno1.com; Undated
7) Form no. 51: Warrant of Commitment of the Surety of an Accused Person admitted to Bail; www.vakilno1.com; Undated