From your question, it appears that an FIR is yet to be registered against you on the complaint of your wife. In these circumstances, at this stage when the FIR is yet to be registered, it may be difficult to get anticipatory bail. While there is no complete prohibition under Section 438 Cr.P.C. to grant anticipatory bail where FIR is yet to be registered, usually the court would see whether there is a reasonable apprehension of arrest in a non-bailable offence which should have been committed already (and not merely a future event or a speculative incident) even if the FIR is still to be registered. Under Section 438 Cr.P.C., an application for anticipatory bail can be made “(w)here any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence…”. An apprehension of arrest on accusation is the sine qua non for taking recourse to S. 438 Cr.P.C. An accusation may exist before a case is registered by the police. Thus the apprehension must be based on real belief and the arrest must be imminent.
As a condition precedent to its application, S. 438 Cr.P.C. makes it incumbent that there must be an existing accusation of having already committed a non-bailable offence. On such an accusation there must be reason to believe that applicant may be arrested. A mere apprehension of arrest will not suffice. That must be on the basis of an accusation of having committed a non-bailable offence. That means the apprehension must be reasonable and based on existing facts. Imaginary accusation or future possible accusations will not be sufficient. On such accusations which are yet to come there cannot be any reasonable apprehension of an existing threat of arrest. It is a condition precedent for an application under S. 438 that there must be an existing reasonable apprehension of arrest on an existing accusation of having already committed a non-bailable offence prior to the point of time of filing the application. That accusation will have to be specified in the application and the direction to be sought for is for release in case of arrest in connection with that accusation. Protection under S. 438 could be claimed only against specified accusation and not against possible arrest in general against unspecified existing accusations or accusations likely to arise in future. What is contemplated is not a blanket protection.
On the other hand, if the FIR has already been registered against you under Section 498-A of IPC, then you may apply for anticipatory bail either with the Sessions Court or with the High Court. Preferably, you should file this application before the Sessions Court.
But, if the FIR is yet to be registered then generally speaking, your application for anticipatory bail may not be entertained, though in such cases, sometimes the court may verify from the police and the court may in its discretion direct the police to give you advance intimation of a few days before making arrest (as and when it is about to happen) so that you could apply for anticipatory bail in that situation.
[Note: Some contents in the above reply 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, New Delhi (ISBN: 978-81-8038-440-0).]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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