Can anticipatory bail be granted even before registration of FIR?


Question: Is it possible to get anticipatory bail from the court even before the registration of F.I.R. by the police? I have been threatened by my opposite party that he would be filing FIR with the police station against me if I don’t pay a particular sum of money. Can I apply for anticipatory bail even before the registration of the FIR by police? Being a Government officer, if I am arrested and then remanded to custody, it would have serious adverse consequence for me.

Answer: Anticipatory bail is granted under Section 438 of the Criminal Procedure Code (Cr.P.C.). It is not a condition precedent for invoking the provisions of this section that FIR should have been registered first. What Section 438 Cr.P.C. requires is that the applicant is apprehending his arrest on accusation of having committed a non-bailable offence. It is not necessary that at the time of applying for anticipatory bail, the police must have already registered the FIR. Anticipatory bail can be applied even before registration of FIR, provided there is a real apprehension of arrest on accusation of having committed a non-bailable offence. Relevant extract of Section 438 Cr.P.C. is reproduced below:

438. Direction for grant of bail to person apprehending arrest.— (1) 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:—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.”

In this regard, it may be pointed out that in the case of Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1648 : 1980 Cri LJ 1125 : (1980) 2 SCC 565, a Constitution bench of the Supreme Court has held that the filing of a First Information Report is not a condition precedent to the exercise of the power to grant anticipatory bail under S. 438 Cr.P.C. and that the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

Likewise, in the case of K. Rajasekhara Reddy v. State of A.P., 1999 Cri LJ 1933 at p. 1935 (AP), it has been held that the filing of an F.I.R. and registration of a crime by the police is not a condition precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under S. 438 of Cr.P.C.

In the case of In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2199 (Cal) : 1982 (2) Cal HN 317, it was held that the provision for the anticipatory bail in Section 438 of the Code applies even when there is no “First Information Report” and no case for commission of a non-bailable offence has been registered against a person. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, although no “First Information Report” was filed against him, he may appear before the Court and apply for an order for his release on bail in the event of his arrest. The filing of a “First Information Report” is not a condition precedent to the application for anticipatory bail and in such a case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session, not for the purpose of being taken into custody of the Court but for getting an order for his release in case he is arrested. No doubt, even after a “First Information Report” is lodged against such a person, he will be at liberty to appear before the High Court or Court of Session and apply for anticipatory bail without surrendering himself to the jurisdiction and orders of the Court in the matter of his custody as an accused; but although such a course is left open to the person, he may as well appear before the Magistrate having jurisdiction and submit himself to the orders of the Court regarding grant of bail to him or taking him into custody.

Similarly, in the case of Suresh Vasudeva v. State, 1978 Cri LJ 677 at pp. 681-82 (Del), it was observed that S. 438(1) of Cr.P.C. applies only to non-bailable offences. The section itself especially prescribes that any order passed under this section would be effective only after the person concerned has been arrested. It does not require that the offence must have been registered. All that this section contemplates is that the person applying has reasonable belief that he may be arrested on accusation of having committed non-bailable offence. It will depend on the facts of each case whether the person applying could have the necessary “reason to believe”. This “reason to believe” is not dependent upon the registration of the case only.

[Note: Some contents in the above answer have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-440-0).]

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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