Can Seek Anticipatory Bail Even Before Filing Of FIR If Reasonable Apprehension Of Being Arrested Is Present: Allahabad HC

The Allahabad High Court has observed that anticipatory bail can be sought by a person if he has a reasonable belief that he may be arrested, even though an FIR regarding the alleged non-bailable offence is not yet registered against him.

The bench of Justice Nalin Kumar Srivastava however added that the law does not permit a person to seek anticipatory bail on merely vague assertions in the absence of any relevant material showcasing his reasonable belief regarding the likelihood of arrest.

The bench observed thus while denying bail to one Javed Ahmad who had moved the court seeking pre-arrest bail with an apprehension of his arrest by the police any time after lodging of the FIR against him in an alleged false case.

Essentially, it was the case of the applicant that Sahab Lal (opposite party no. 2) had given him some amount as financial help for the construction of his house, and on January 5, 2023, the opposite party no.2 asked for repayment of the total outstanding money after allegedly abusing and threatening him to repay the same till January 20, 2023, otherwise he could be implicated in a false and fabricated case.

Against this backdrop, he moved the High Court by submitting that there is every likelihood that he may be implicated in the false case and he would be arrested and hence, he be granted anticipatory bail.

Noting that the FIR in the case is not registered yet, the Bench said that though filing of an FIR is not a condition precedent to exercise the power under Section 438(1) CrPC, but at the same time, a person's apprehension of arrest has to be based on concrete facts and not vague or general allegations relatable to a specific offence or particular offences.

In this regard, the Court also cited Apex Court's rulings in the case of Gurbaksh Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565 and Adri Dharan Das Vs. State of West Bengal, (2005) 4 SCC 303 wherein it was held that the applicant must show that he has "reason to believe" that he may be arrested in a non-bailable offence.

"...Section 438 (1) of Cr.P.C. applies not only at the post-FIR stage, but it does not require that the offence must have been registered. It is contemplated by this section that if a person is going to apply for anticipatory bail, he must have a reasonable belief that he may be arrested on accusation of having committed a non-bailable offence," the Court remarked.

Against this backdrop, the Court observed that the apprehension of arrest on the part of the applicant in the instant case is not well founded and that he had failed to explain how he has a reasonable belief of being arrested by the police.

The Court also noted that till now, no complaint has been moved by the said Sahab Lal (opposite party no. 2) to any authority against the present applicant in connection with the recovery of his money given to the applicant.

The Court further noted that no application before any court has been moved so far by opposite party no.2 to prosecute the applicant and hence, no reasonable belief of being arrested exists there.

In view of this, the Court refused to allow the anticipatory bail plea.

Case title - Javed Ahmad vs. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1379 of 2023]

Case Citation: 2023 LiveLaw (AB) 93

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