The steps that a person can take when an FIR has been lodged against
him. The first thing a person has to do is to enquire as to whether
the FIR has been lodged for a bailable or a non-bailable offence. A
bailable offence is one in which bail may be asked for as a matter of
right. A non- bailable offence is one where only in certain
contingencies will bail be granted.
Depending on the kind of offence that the police have registered, a
person should apply for bail under the relevant provisions of the Code
of Criminal Procedure, 1973 (CrPC). If a person has been accused in
the FIR of an offence other than a non-bailable offence, he can move a
bail application in the High Court or sessions court under Sec 436 of
the Criminal Procedure Code.
Sec 436 provides that when any person other than a person accused of a
non bailable offences is arrested or detained without warrant by an
officer in charge of a police station, or appears or is brought before
a court, and is prepared at any time while in the custody of such
officer or at any stage of the proceeding before such Court to give
bail, such a person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may,
instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance.
Persons within S 436 cannot be taken into custody unless they are
unable or unwilling to offer bail or execute a bond.
This section contemplates two kinds of security –
A personal recognizance
Security with sureties.
In case of a FIR being lodged for a non-bailable offence, person who
apprehends an arrest should immediately apply for Anticipatory Bail.
Anticipatory bail is a direction to release a person on bail, issued
even before the person is arrested.
Sec 438 of the Criminal Procedure Code deals with the concept of Anticipatory Bail. Sec 438(1) provides that when any person has reason to believe that he may be arrested on an 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, and that Court may, if it thinks fit, direct that in the event of such arrest,he shall be released on bail.
The distinction between an ordinary bail and anticipatory bail is that the former being after arrest means release from custody of police, the latter being in anticipation of arrest is effective at the very moment of arrest.
Sec 437 of the Criminal Procedure Code deals with the power of courts other than High Court or court of session in the matter of granting or refusing ordinary bail in a non bailable offence. Sec 439 of the Criminal Procedure Code deals with the special power of the High Court or Court of Session regarding bail. The discretionary powers of the High Court or the court of sessions under this section is considerably wider than the powers of the magistrate in S437.
In conclusion it can be said that the most important step for a person against whom a FIR has been lodged is to obtain appropriate Bail. It would be advisable that legal counsel be hired to obtain such bail.
When can a person apply
When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, He has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
Conditions that may be imposed by the court
The High Court or the Court of Session may include such conditions in
the light of the facts of the particular case, as it may think fit,
(a) a condition that the person shall make himself available for interrogation by the police officer as and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the court.
Arrest at later point of time.
If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
Anticipatory ball is not a blanket order for not to be arrested.
The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.