Posted On : June 13, 2020
There is no pattern or reasoning as to when anticipatory bail can and cannot be granted. Especially in domestic violence cases, it seems that the courts make these decisions on the basis of the complaint received by them and the gravity of allegations therein
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The paper today is concerned with: The matter of anticipatory bail under the India Penal Code (IPC) for offences registered under Section 498 A and Sections 3 and 4 of the Prevention of Domestic Violence Act. This paper discusses the tendency and likelihood of receiving anticipatory bail in such situations, and usually, the procedure one needs to follow if they are at the receiving end of prosecution under these sections.

In order to begin the objective of the paper, one needs to first understand the nature of anticipatory bail provided for under Section 438 of the Code of Criminal procedure (CrPC), which is an extension to the general provisions of bail, whereby a person, in anticipation of arrest may apply to either the District or High Court for a conditional bond such that in fulfilling these conditions that person may be arrested for the anticipation he has given before the court. It is important to note that anticipatory bail can be filed at any time during the pendency of the prosecution, as it was held in Sushila Aggarwal vs State of NCT Delhi (2018) 7 SCC 731that there is no set time limit on when an anticipatory bail can be applied for, and the petitioner of such a bail petition is allowed to file at any time during the prosecution, including but not limited to, even before the filing of an FIR, or registration of complaint. As held by the Supreme Court in Jitendrakumar Bhanukumar Rao vs State of Gujarat (2015) SCC Guj 3371that even in situations where it may not be clear that the applicant might be arrested at the end of an investigation, he may file for anticipatory bail for the sole reason that there is a chance that the investigation might lead to an arrest in the end. With this in mind, one needs to look at the text of Section 438 of the CrPC to understand the nature of commitment one might expect when applying to the court for anticipatory bail.

This paper also deals with the intersection of this section in the CrPC with the DV Act. Specifically enacted to deal with the criminalization of violence against women in the domestic setting, more specifically, the definition of domestic violence under Sec.3, which includes more scenarios and covers more ground than Sec. 498a of the CrPC. In Sec.3 of the DV act, there’s no charge. Ultimately, all matters charged through the definition here need to be charged under the CrPC. On a cursory reading it shows us that it has a wider scope than that of Sec 498a, it includes mental, verbal and emotional abuse as a chargeable offence, further, it includes all acts that contribute to such abuse, either directly or indirectly, this extended definition allows for a larger number of situations to be covered and charged. More important is that this section differentiates dowry demands and abuse related to that, and economic abuse which has, for the longest time clamoured for recognition among criminology circles. Sec. 4 of the act, on the other hand, allows for reportage by persons other than the victim, and even encourages such reporting through the blanket immunity provided to the informant, and in the alternative, an option has been given to the abused to make any complaint in such matter through an Information Protection Officer, Who shall be designated to convey the same to the authorities, thus removing the societal taboo of reaching out to the police, and enabling the formation of a barrier of sensitization trained personnel between the police and the traumatized victim. Bear in mind that in the precedent discussed in this paper, all cases use a combination of charges under Sec. 3 & 4 of the DV Act and Sec. 498a of the CrPC, to enable the criminal sanction of the act to the broader definition under the DV Act.

The first thing one needs to keep in mind is that this section applies only to non-bailable offences, and application may either be made to the court of sessions or the High Court, thereby making anticipatory bail one of the few matters other than writ that fall under the original jurisdiction of the High Court. It is also interesting to note that the judge, among others, may choose to impose conditions to prevent the person from absconding, or in the alternative that he must be ready and available to be presented before the police for an investigation in the matter. The most important aspect of this section is this: That depending on the offence, the judge may prescribe such conditions as he may deem fit, and that power has been used liberally in matters relating to anticipatory bail under the Domestic Violence Act and Section 498 A of the IPC.

On the other hand, Section 498 A of the IPC has the following antecedents: While there is a general period of limitation of 7 years on all dowry-related matters, it shall also apply to this section. This section envisages two categories of accused’s: The husband and the relatives of the husband, and the section can be filed for one of two reasons illustrated in the sub-sections, that there has been violence such that it has driven the bride to suicide, or nearly so and that such mental cruelty has been meted out for demand of an illegal sum of monies and property by the husband and his family. In both these situations, a complaint may be lodged by either the victim herself, the protection officer, or any person that suspects that acts of domestic violence are taking place (Sec. 4 of the DV Act).

This paper deals with the confluence of these three statutes that anticipatory bail may be granted in a matter of domestic violence, and in what situations the court might be more willing and lenient to an applicant.


Court Precedent Analysis

The courts have generally shown leniency in granting anticipatory bail in cases registered under Section 498A, in the words of the Kerala High Court, and this is because it might allow the parties to reconcile the matter out of court, or through other civil remedies, rather than resort to the irrevocable nature of the criminal remedy sought here. This reasoning played an instrumental role in granting bail in the matter of G.R. Deepesh Kumar v State of Kerala where it was established in the course of the investigation that the applicant husband had been the sole perpetrator of the purported violence in the matrimonial household. Yet, this is not to say that in all situations, the court will be equally lenient. In the matter of in Re: Govind Ram Agarwala and Others2015 SCCOnline Cal 4298the court took a similar stance, but the matter was examined in greater detail, where the complainant wife had already reported the abuse suffered, and that the parents of the accused have been granted anticipatory bail and a case was made that the husband may also be granted the same. The court in this matter has made note that the accused has been given multiple chances to reconcile the matter amicably and for that reason, the anticipatory bail has been granted, and in the current petition, as it was made abundantly clear that the parties are in no position to compromise, the previous orders will have to be withdrawn. From this, it can be seen that:

  1. Courts are usually partial in granting anticipatory bail in such matters.
  2. If the parties are either already in the process of, or have made representations to the effect of dissolution of the domestic relationship/ settlement of the dispute, the court shall be all the more reluctant to reject a petition for anticipatory bail.

In such cases where there is prima facie evidence that wrongdoing has occurred, and no settlement seems viable, the court has chosen in the matter of In Re: Anjanaba Bhattacharya to grant anticipatory bail with conditions antecedent, and this case is peculiar because the petitioner has not attended to the notice for investigation sent by the officer in charge, the court reasons that, the petitioner shall be granted anticipatory bail conditional on complying with the investigation. This measure by the court can be seen as both favouring the applicant for bail, and at the same time, ensuring that the investigation for the complaint lodged under Sec. 498 A occurs smoothly.

It is also noted that the court has granted anticipatory bail in those situations where the petitioner is apprehensive of arrest in a matter for which the FIR may not have been filed yet. This is a rare phenomenon since courts tend to wait until a complaint has been filed to evaluate the situation in a domestic relationship and gauge the situation accordingly.As mentioned in Dr Lokesh B.H v State of Karnataka Cri. P. No. 5962/ 2015.

On the other end of the spectrum are cases like S. Jayalakshmi v State of Kerala, where the court denied anticipatory bail despite the primary applicant (husband) having already received bail in this case since the secondary accused were in immediate control of the domestic situation of the victim, so they were not granted anticipatory bail. This case is a good example of the perception of the judiciary on the part of matters of domestic violence, as a petitioner for anticipatory bail, one is in a favourable position to be granted the bail as long as the relationship between the parties hasn’t deteriorated to such an extent that in the opinion of the court there can be no settlement between the parties.

It is important to note that there are no antecedents to filing for anticipatory bail, and the only requirement for filing is an apprehension of getting arrested, no analysis of the guilt, or the merits of the complaint is encouraged. Sagarmal and Anr. V State of Rajasthan and Others (1998) 3 RLW 1970where the merits of the matter have been excluded from discussion in granting anticipatory bail, and merely the fact that the sessions court has refused the same played a significant role in determining the order of the High Court.

On the other hand, it does not mean that no reference shall be made to the situation of the victim and the applicant, it is imperative to understand that even in the general tendency to grant anticipatory bail, the nature and gravity of the alleged offence play an important role in the decision of the courts, as this can be seen in the matter of Abdul Saleem Abdul Kareem Shaikh v State of Maharashtra and Anr. 2020 SCC Bom 512. In this case, it was held that since the allegation against the accused is more concrete in nature, in comparison to the general allegations of cruelty against the rest of the accused’s family, he cannot be granted anticipatory bail.


Conclusion and Pointers

Thus, it is necessary to note that while it is possible to file a petition for an anticipatory bail even before the complaint has been registered not many instances of the same have been observed in matters of Domestic Violence. From the discussions in this paper, and the precedent of Surjit Kaur Chopra v State and Anr, as decided in the Delhi High Court, the following pointers need to be kept in mind while filing any litigation for an anticipatory bail in general, or specifically in matters of domestic violence:

  1. In general, courts show partiality to the applicant if there is a chance that the matter can be settled privately outside the court.
  2. Courts do not necessarily grant anticipatory bail on the sole fact that the allegations maybe false. The main consideration here is the balance of convenience.
  3. In making an unofficial complaint, or representation in the matter of pre-arrest bail, one should follow Rule 2 of the Domestic Violence Act, and keep track of the domestic transactions that gave rise to the claim. This is important in asserting the veracity of claims made in the complaint, and petition for bail.
  4. Parties should usually take the court upon the offer of settling the matter out of court since they show preference to extending lenient terms to exacerbate the out of court settlement.
  5. Making an anticipatory bail before the complaint has even been made is not very wise since, in precedent, courts depend on the complaint document to determine the fitness of the matter for allowing bail.
  6. Since no other documents are available to substantiate the case of the petitioner, it is tough to justify, only one case where such allowance was made and that too after an informal complaint has already been made with the state Women's’ Cell.

In summary of the above-discussed cases, it can be said that in more cases than not the courts have granted anticipatory bail, there is no pattern or reasoning as to when anticipatory bail can and cannot be granted. Especially in domestic violence cases, it seems that the courts make these decisions on the basis of the complaint received by them and the gravity of allegations therein.

Written By:
Kishan Dutt Kalaskar

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Dear Sir, Anticipatory bail judgements that can be used by husbands to secure their freedom and that of their beloved ones 16 June 2015 at 06:03Public Blog Links to Approx 30 cases where Anticipatory bails were granted. Short titles and notes added. Some cornerstone / classic cases included.  Whether you are a rookie husband who got married recently or a seasoned one with children, the moment police file an FIR, thanks to your ‘beloved’ wife’s complaints, your thoughts run towards bail. You start thinking, “…What can I use in my arguments for either Anticipatory bail or normal bail?..”  That’s when you start searching for judgements supporting grant of bail to husbands  Many such judgements are already blogged on Given below is small compilation of some of these judgements . Obviously there are many more cases which you can search and get in, but this entry / update is a good starting point. ************************************* Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors. - 2 December, 2010 The Honourable Supreme Court of India beautifully highlights the law regarding bails as follows “….The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty…” I see this judgement being regularly used by other courts granting bail. This is becoming a “Mother of all judgements”, on anticipatory bail. In this case the liberty of the individual is balanced against the interests of the state, public safety etc and BAIL GRANTED to the accused ************************************* Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980 Cornerstone case on Anticipatory Bails. Supreme court of India This very detailed judgement almost lays down the law on Anticipatory bails and is affirmatively quoted in many bail orders that follow. This judgement decides the following key issues 1. The society has a vital stake in both of these interests namely, personal liberty and the investigational power of the police, ... The Court's task is how best to balance these interests ... 2. The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. .... 3. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. The Hon court has also enunciated these Key principles about an Anticipatory bail. Namely :  ....Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.  Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.  Thirdly, 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 yet filed.  Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.  Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, ...... The Hon court goes on to add: 4. ... A "blanket order" of anticipatory bail should not generally be passed. 5. An order of bail can be passed under section 438(1) of the Code without notice to the Public Prosecutor. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. This is an essential judgement to read and understand to know our rights as citizens seeking justice and liberty ************************************* Natturasu And Ors. vs The State on 8 January, 1998 AB be granted 4 entire trial & NOT limited time. AB can b granted b4, after FIR, even after cognizance. Classic Madras HC judgement on AB This is yet another Magnum Opus on Anticipatory bails, this time by a High court! In this case, the Hon Madras HC clarifies that • Normally, AB to be granted for entire trial period & NOT for a limited period time. • AB can be granted before or after FIR, even after cognizance. • Courts have wide powers but such powers are to be exercised carefully. • AB once granted should not be cancelled mechanically. The Hon. Madras HC answers many questions about Anticipatory Bails, namely  Normal rule NOT to limit the time of AB  AB can be granted before and IFR, after an FIR and even AFTER cognizance is taken as well.  No difference between Bail and Pre arrest bail except that normal bail is after custody The judgement goes to list several examples of when an AB can be granted. The judgement also analyses many other cases on AB by other Hon. High courts and the Apex court Excerpts from this judgement: Object of a bail! “….22. Thus, it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. 23. In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial.….” Bail once granted should NOT be cancelled in a mechanical manner “…65. In the light of the above, the anticipatory bail once granted must be held to be operative till the conclusion of trial, unless it is cancelled under Section 439, Cr.P.C. 66. ....However, unless there are very cogent and overwhelming circumstances, the bail or anticipatory bail cannot be easily cancelled. 67. Bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances…” No necessity to limit the time of an AB! ".. Constitutional Bench specifically observed, as referred earlier, that "the normal rule should be not to limit the; operation of the order in relation to the period of time….The High Court or the Court of Session, in an application for anticipatory bail, must apply its own mind and decide whether a case has been made out for granting such a relief. It cannot leave the question for the decision of the Magistrate under Section 437, Cr.P.C. as and when an occasion arises. Such a course will defeat the very object of Section 438 Cr.P.C. 82. Therefore, the observation by the Constitutional Bench would disclose the ratio that the High Court or the Court of Session normally exercises its judicial discretion granting anticipatory bail for entire period by not limiting the operation of the order in relation to a period of time. 83. As narrated earlier, the words contained in Sections 438(1) and 438(2), viz., "if it thinks fit" would empower the High Court or the Court of Session to make such a condition limiting to the period, considering the facts and circumstances of each case. But, it does not mean that the High Court or the Court of Session has no powers to grant absolute anticipatory bail…" Can AB be granted AFTER charge sheet is filed ? Answer is YES! "….86. It is not the view of the Apex Court that for the reason that the charge sheet had been filed, the Courts mentioned in Section 438 have become defunct to exercise the powers under the said provision. If that was the view of the Apex Court, it would not have approved the granting of interim anticipatory bail for a limited period……." Rate me Five Star*