Can anticipatory bail be granted to a person against whom no F.I.R./ complaint has been lodged/filed?

Question: Can anticipatory bail be granted to a person against whom no F.I.R./ complaint has been lodged/filed?

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Answer

The term “anticipatory bail” is self-explanatory. It is a kind of bail granted to someone expecting to be arrested by the police for a non-bailable offence. The observation of the Constitutional Bench of the Apex Court in the landmark case of the Gurbaksh Singh v. State of Punjab, 1980 AIR 1632 has held that an ‘anticipatory bail’ can even be granted to a person against whom no F.I.R. complaint has been lodged/filed. The court explained its decision in light of the following observations:

The filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not filed. Anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.

This would show that even during the investigation, there are two stages at which there may be apprehension of the arrest. One is before the F.I.R., and another is subsequent to the F.I.R.

Prior to the registration of the F.I.R., there may not be an arrest. The question of arrest would arise only after the registration of the F.I.R. under Section 154 of CrPC.

In the light of the observation of the Supreme Court, it can be concluded that if the applicant entertains the apprehension of arrest at the hands of the police at the petition enquiry before registering F.I.R., the High Court or the Court of Session could invoke Section 438, provided the imminence of a likely arrest is shown to exist to the Court.

When such is the situation, the registration of the F.I.R. and continuation of the investigation would definitely give rise to the apprehension of arrest, in which event the accused in the said F.I.R. could very well approach the Court for seeking the relief of anticipatory bail, since registration of F.I.R. itself would be a strong material to show that he has got reason to believe that he may be arrested by the police.

The second stage is during the course of a further investigation under Section 173(8) of CrPC. If a person is not arrested in the first investigation and in the event of taking up for further investigation by the police either on the direction of the superior officer or on the direction of the Court or on the basis of fresh materials, which have come to light, the person against whom the materials have been collected in the further investigation could approach for anticipatory bail, since apprehension of arrest could be shown to the Court exists.

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