The Allahabad High Court has held that anticipatory bail under Section- 438 CrPC 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 single-judge bench of Justice Nalin Kumar Srivastava however clarified that the law doesn't permit knocking at the door of the Court for the grant of anticipatory bail on merely vague assertions in the absence of any relevant material and certainly, the Court will not grant anticipatory bail in such a case.
"It is also noteworthy that no material in support of his plea of entertaining reasonable belief that he is likely to be arrested in connection with the commission of a non-bailable offence, has been produced on record by the applicant," the Court noted.
It was submitted by the learned counsel for the applicant that the opposite party no.2 had given Rs.17,50,000/- to the applicant as financial help for the construction of his house, as they were friends and subsequently Rs.1 lakh on respective dates were paid by the applicant to him. However, on 5.1.2023, opposite party no.2 asked for repayment of the total outstanding money and abused and threatened him to repay the same till 20.1.2023 otherwise he could be implicated in false and fabricated case. The applicant informed the incident to the S.P. and till date he has already paid an amount of Rs.3,20,000/- to opposite party no.2 in his bank account on respective dates, but the applicant has apprehension of his arrest by the police any time after lodging of the F.I.R. against him.
It was further submitted that here is every likelihood that the applicant may be implicated after foisting of false case against him and that the applicant has no criminal antecedents.
The Court at the outset noted that filing of first information report (F.I.R.) is not a condition precedent to exercise the power under Section 438(1) Cr.P.C., as held in Gurbaksh Singh Sibbia Vs. State of Punjab [1980] INSC 70 (9 April 1980) but at the same time it is also to be kept in mind, as held in the aforesaid case by the Hon'ble Apex Court, that "when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable to a specific offence or particular offences.
"Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which is considering the application, the extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest."
It also mentioned Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) & ANR. [MAY 15, 2018] in which it has been emphasized that Section 438 Cr.P.C. does not compel or oblige Courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc.The Court was of the view that the condition to be focused upon is "Reason to believe" which is something more serious than a mere apprehension of the arrest. It cited Adri Dharan Das Vs. State of West Bengal [2005] INSC 108 (21 February 2005) to re-iterate the legal position explicit that Section 438 (1) of Cr.P.C. applies not only at 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 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 FIR is not yet filed."
In backdrop of the above, the Court noted that the apprehension of arrest on the part of the applicant is not well founded and the applicant has failed to explain as to how he has reasonable belief of being arrested by the police.
"He has mentioned in his application that from the total money due to Sahab Lal, an amount of Rs.3,20,000/- has been paid by him in his bank account on respective dates. A statement of account has also been filed by the applicant. It also appears from the perusal of the record that no complaint has been moved by the said Sahab Lal to any authority against the present applicant in connection with the recovery of his money given to the applicant. Further, no application before any court has been moved so far by opposite party no.2 to prosecute the applicant. Thus, no reasonable belief of being arrested exists there."
It is also noteworthy that no material in support of his plea of an entertaining reasonable belief that he is likely to be arrested in connection with the commission of a non-bailable offence, has been produced on record by the applicant, the Court added.
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