How to file anticipatory bail in Uttar Pradesh

The FIR was lodged against me for the office of cheating in district Lucknow. The improvement falsely implicated me in taking revenge; therefore, he made a false allegation in the FIR. As far as my knowledge the anticipatory bail is not applicable in Uttar Pradesh. How could I get anticipatory bail and what is the procedure thereof?

Section 438 of the code of criminal procedure provides anticipatory bail. The state of Uttar Pradesh has omitted the applicability of section 438 CRPC by section 9 of The Criminal Procedure Code (Uttar Pradesh Amendment) Act 1976. After that, the accused cannot get anticipatory bail in Uttar Pradesh.

Anticipatory bail is a statutory right to protect the accused who is innocent. However, the state of Uttar Pradesh has omitted section 438 CrPC, but the High Court has been granted such bail under Article 226 of the Constitution of India. Now the state of Uttar Pradesh has resumed section 438 CrPC vide notification dated 6 June 2019. The court can grant anticipatory bail if the accused seems innocent and the court convinced that he would not misuse his Liberty.

The application for anticipatory bail may be filed either before the court of sessions or High Court because both courts have concurrent jurisdiction in respect of section 438 CRPC.

Effect of anticipatory bail

when the court grants anticipatory bail, which means that:

  • if the accused is arrested the bail shall be granted immediately.
  • When the court issues a warrant against the accused, the warrant shall be bailable.

The police cannot arrest the accused in respect of the offence to which the accused has got anticipatory bail.

First approach the Court of Sessions

In Harendra Singh @ Harendra Bahadur versus the state of Uttar Pradesh [criminal misc. Application no. 6478 of 2019] the Lucknow bench of the Allahabad High Court held that the accused who are apprehending arrest must move anticipatory bail application before the court of sessions. That the accused cannot move anticipatory bail application directly before the High Court. The court further held that:

“The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision.”

In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), The Gauhati High Court has also expressed a similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.

Irretrievable breakdown of marriage in the Hindu Marriage Act

Marriage is the very foundation of the family. It is an institution in the Hindu because marriage is the union of bones with bones, flesh with flesh. But this concept is gradually decreasing with the development of new social and economic trends. However, it is still an institution among the large section of our society.

The marriage subsists when the spouses have a sound understanding and corporate each other to lead a happy married life. If the understanding is missing and conflicts of interest takes place in daily life, then the marriage becomes the endless misery for both. In such condition, divorce is the ultimate remedy to allow them to recreate their life.

Section 13 of the Hindu Marriage Act provides several grounds of divorce. All the grounds need a desired party to prove the guilt of the opposite party — the whole concept of separation in the Hindu Marriage Act based upon the guilt theory. It is necessary to prove matrimonial offences recognised as the ground of divorce in section 13 of the Hindu Marriage Act.

Read also: Wife claiming divorce on the ground of impotency

Generally, the enmity develops between the parties when they prove guilt in the course of divorce proceeding. Eventually, this enmity influences the parties to create a lot of hurdles with the sole motive to harass and delay the process.

The guilt theory of divorce is the main reason behind the pendency of a lot of divorce cases before the family courts of India. At the beginning of the case, the spouses are generally ready to get a divorce as soon as possible. The concept of irretrievable breakdown of the marriage could play an essential role at this early stage of the proceeding. Aditionally, when no party falls under the obligation to prove the guilt, the law will also achieve the very purpose of divorce.

Recognition of irretrievable breakdown of marriage

The Supreme Court of India has partially recognised the irretrievable breakdown of marriage in certain conditions. In Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558, the supreme court supported the concept of irretrievable breakdown of the marriage.

The court expressed its view that when the life of spouses became miserable, they should not be allowed to live together. The dissolution of marriage without proving guilt will serve the purpose of the law.

The Supreme Court has given some conditions in which divorce without proving guilt is possible.

  •  When the spouses are living separately for a long time.
  •  They have no love and affection for each other.
  •  No faith in marriage remains between the spouses.
  •  Their life became so miserable that renders impossible to live together.

With the advancement of socio-economic conditions, adaptation of irretrievable breakdown of marriage is the need of time. The essence of marriage life is to share happiness, everyday life and experience of joy. When the purpose of marriage has destroyed, the separation without proving the guilt would be the best exit policy for the spouses.

Several countries in the world have recognised the irretrievable breakdown of marriage. In the absence of any explicit provision in the Hindu Marriage Act, the supreme court has devised a procedure under article 142 of the Constitution of India. The supreme court could grant the divorce without proof of guilt if their marriage has broken down due to unfortunate circumstances.

State of Haryana vs Bhajan Lal

State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335]

The Supreme Court has held in Bhajan Lal case that the High Court can quash the FIR to protect the accused from malicious prosecution. It has quashed the criminal proceeding against the Bhajan Lal, the then Chief Minister of Haryana. When a criminal proceeding is instituted with mala-fide intention to harass the person, the court can quash the entire proceeding for the ends of justice. The Supreme Court has issued seven guidelines which should be followed by the High Court in the exercise of its inherent power vested by section 482 crpc to quash the pending criminal proceedings.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Explanation of aforesaid seven golden rules

The Supreme Court further said that the High Court should quash the criminal proceeding in the rarest of the rare cases. Section 482 crpc does not confer arbitrary jurisdiction of the High Court and it cannot act according to its whim and caprice.

Section 482 crpc: the High Court has inherent power to quash any criminal proceeding which is an abuse of process of the court. Filing false FIR or complaint thereby rope the accused in a false allegation is an abuse of process of the court. A false and frivolous criminal proceeding adversely affects the criminal justice system. 

Power under section 482 crpc is very vast and unfettered. The landmark judgment of the Hon'ble Supreme Court in the Bhajan Lal case is an attempt to draw a boundary within which the High Court should exercise its inherent power. Bhajan Lal case is known for its “Seven golden rules” to be considered in quashing a criminal proceeding. Here we discuss those seven rules one by one:

Allegations don’t constitute any offence

The High Court can quash the criminal proceeding if it finds that after taking all the allegations made in FIR or Complaint at their face value, it don’t prima facie constitute any offence. Prima facie means "sufficient to establish a fact or raise a presumption unless disproved or rebutted."

If allegations do not suggest commission of an offence then the court will quash that proceeding. In Arnab Manoranjan Goswami v. State of Maharashtra, AIR 2021 SC 1, the Supreme Court reiterated the first golden rule of Bhajan Lal’s case. 

FIR does not disclose a cognizable offence

The High Court can quash the FIR if it does not disclose the commission of a cognisable offence. FIR relates with commission of a cognisable offence only. Officer in charge of the police station cannot record any information (FIR) pertaining to the non cognisable offence under  Section 154 of the CrPC. Cognisable offences are serious offences. If FIR does not disclose cognisable offence, the investigation on such an FIR will impede the rights of accused.

After recording the FIR the investigating officer can arrest the accused without warrant or order of the Magistrate. The accused will languish in police custody for some time. Such an illegal police custody will result in physical and mental harassment of the accused. Therefore, the High Court will quash the FIR which does not disclose cognisable offence. 

Uncontroverted allegations made in the FIR

The baseless allegation in FIR is a ground of quashing. There must be some evidence in support of commission of any offence. In devoid of evidence, the prosecution cannot prove that the accused has committed an offence. A criminal proceeding without evidence will not only frustrate the criminal justice system but also invade the fundamental right of accuse. Therefore, the Supreme Court has held in Bhajan Lal’s case that a criminal proceeding shall be quashed if uncontroverted allegations have been made in FIR.

Allegation in FIR constitutes non cognisable offence

A police officer cannot investigate a non-cognisable offence without permission of the Magistrate. Non cognisable offences are less serious offences. It does not harm our society as much as compared to cognisable offences. Therefore, the CrPC embodies some restrictions on the police power towards investigation of non-cognisable offences. 

Carrying out Investigation in non-cognisable offence without permission of Magistrate frustrates the founding principle of the code of criminal procedure. It is an abuse of the process of the court. Hence, the High Court will quash such FIR under section 482 CrPC.

Allegations made in the FIR or complaint are so absurd

The High Court can quash the FIR when allegations are absurd and lacking firm ground to investigate that offence. Allegations in the FIR must be solid and capable of giving a reason for initiating  investigation against the accused. CrPC does not permit launching an investigation upon an absurd FIR. Because a police officer can harass the accused in connivance with the informant. Therefore, an absurd allegation in FIR constitutes a ground for quashing the FIR. 

The High Court can quash the criminal proceeding which is carried on in breach of pre legal requirement. Section 195, 196, 197, 198 & 199 of the Code of Criminal Procedure put some pre-conditions for launching a criminal proceeding against the accused. Breach of such a pre condition will nullify the investigation. Thus such breach will give a ground to quash that criminal proceeding. 

Criminal proceeding with mala-fide intention

When an accused has been falsely implicated by manipulation of facts then it is said to be a mala-fide criminal proceeding. Such a mala fide intention constitutes a ground to quash the proceeding. Filing false FIR is a very easy task in India. Section 482 CrPC provides a protection to the accused from such a mala-fide proceeding. The High Court can quash the proceeding if finds that information has manipulated the fact and launched a criminal case with bad intention. 

Filing of FIR is illegal if dispute has settled in Lok Adalat

Whether filing of FIR is illegal? The electricity board has filed an FIR under Section 135 of the Electricity Act 2003. That FIR was for electricity theft. However, I was guilty of that offence. But the dispute has settled between the parties in the Mega Lok Adalat. I have a copy of the award. What should I do?

That is a compoundable offence under Section 152 of the Electricity Act. After compounding the case, the electricity board cannot file FIR.

The Lok Adatalt has passed the award in your favour. I don’t know what the terms of the settlement are. Above all, the matter has closed for the parties. Thereafter, filing of FIR is illegal.

If you disobeyed the award, the board might initiate steps for recovery. The board has filed FIR instead of taking steps under the electricity Act.

In State of Punjab &Anr. Vs Jalour Singh & Ors., (2008) 2 SCC 660; the Supreme Court held that in default of payment, the only remedy is to challenge the award.

This FIR is illegal and unjust because right now, no dispute is surviving. You should question the FIR under section 482 crpc.

Saleem Ahmed vs State and other, SLP (Crl) No.8801 of 2018: the Supreme Court held that-

After full and final satisfaction of the entire claim in Lok Adalat, there was neither any occasion and nor any basis to file FIR.

Hence, you should file a petition under section 482 crpc. The High Court has the power to quash this FIR because it is illegal and filed in abuse of the process of law.

The board has mala-fide intention to extort money from you. Once a dispute has settled no ground left for the criminal case.

In State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335) the Supreme Court held:

The court can quash a criminal proceeding where it is manifestly attended with mala fide intention.

The court will stop the proceeding and quash the FIR under section 482 crpc because this FIR is illegal. So you should approach the High Court as soon as possible.

The investigation without registration of FIR is impermissible in law

A police officer came to my house yesterday and told that an FIR has lodged against me. But he did not give any information about the FIR. I think he is doing investigation without registration of FIR. Therefore, I contacted a lawyer to find the truth behind all this. He told me that no such FIR has lodged in the police station.

The police officer is still investigating without any FIR. He did not tell about the nature of the allegation. What is remedy against this dummy investigation? Whether police officer has power to investigate in hush-hush.

First, we should understand what is the legal procedure for the investigation of a cognisable offence. A police officer can investigate a cognisable offence without permission of the court. 

However, it seems an unfettered power but the provisions of Section 154 and 157 of CrPC (code of criminal procedure) regulate the power of investigation. These provisions make it clear that investigation without registration of FIR is not permissible. First Information Report (FIR) is sine-qua-non (mandatory) for the commencement of investigation. 

In Samaj Parivartan Samudaya vs State of Karnataka (2012) 7 SCC 407: the Supreme Court has held that registration of the case upon information received is mandatory before proceeding to take up the investigation.

Also read: What to do if police officer investigating under pressure

When the information discloses cognisable offence then the police can start investigation. In the Lalita Kumari case the Supreme Court has held that police must investigate the crime if information (FIR) discloses cognisable offence. 

Investigation without registration of FIR

Section 154 CrPC states that the officer in charge of the police station shall record the information of cognisable offence as an FIR. The word FIR is not specifically used in section 154. It is a general cannotiation that information recorded under section 154 CrPC is an FIR.

Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant……..

Section 154 CrPC

After recording of the FIR, police officer forthwith sends a report to the Magistrate under section 157 crpc. Compliance of this provision is mandatory for the investigating officer. The report proves that before launching the investigation he has reason to believe that a cognisable offence has been committed.

If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender……..

Section 157 CrPC

Why is a report under section 157 CrPC mandatory?

This report is an intimation to the Judicial Magistrate towards the investigation. These are the main reasons behind sending police report the the Magistrate:

Inform the Judicial Magistrate (JM) before commencement of investigation. Satisfy the Judicial Magistrate that investigation is relating to the cognisable offence. Empower the Judicial Magistrate to take cognisance of offence on the police report. 

Also read: Accused's right against improper investigation

After taking the cognisance the Magistrate can monitor the investigation and pass necessary orders during the investigation. The magistrate can issue a summon or warrant, police remand, take the accused in judicial custody, grant bail etc. Without taking the cognisance of the police report the Magistrate cannot pass such orders.  

Effect of investigation without registration of FIR

It appears from the provisions of CrPC that a police officer cannot investigate a crime without recording the FIR. FIR is the cornerstone of criminal proceedings. In absence of FIR the accused cannot know the nature of allegation. Thus he cannot exercise his rights against a mala-fide criminal proceeding.

Also read: When the court can quash the mala-fide proceeding?

Right to know the allegation is the essential part of fair trial. Fair trial is a fundamental right under Article 21 of the Constitution of India. Thus, absence of FIR at the stage of investigation also violates the fundamental right of the accused.  

If the FIR does not exist at the time of investigation the Magistrate cannot provide its copy to the accused under section 207 CrPC. Section 207 states that the Magistrate shall provide the copy of FIR, police report, statements of witness etc. to the accused. 

FIR sets the criminal law in motion. Any person can lodge the FIR under section 154 CrPC. This provision has enlarged the scope of receiving information. So, recording of information before investigation is the bottom line of criminal proceeding. Investigation without FIR strikes at the root of criminal proceeding.

Illegal investigation violates the fundamental right of accused

Investigation without registration of FIR violates the fundamental right of accused. Fair and impartial investigation is a fundamental right of the accused. Nirmal Singh versus the State of Punjab (2009) 1 SCC 441, Babubhai versus State of Gujarat (2010) 12 SCC 241. 

Also read: You should know everything about the FIR

The accused has a right to know the nature of the allegation and the basis of the investigation. The police will provide this information to the accused whenever he demands. Since FIR contained all this information so recording of FIR is mandatory before initiating the investigation. If the investigating officer does not furnish a copy of FIR he violates the fundamental right (right to know) of the accused.

If the information or FIR is false and vague the accused has the right to approach the court for the quashing of such an investigation. When the police is carrying on investigation without writing the FIR then he cannot

  • Produce the information to the accused.
  • Send a report to the Magistrate under section 157.
  • Satisfy the court that the investigation is valid.
  • Defend the investigation in the court.
  • Approach the court for the issue of summon or warrant.
  • Demand police custody etc.

Remedy

You should move an application before the concerned judicial magistrate under 156(3) CrPC. The Magistrate has power to monitor the investigation [Sakiri Basu Vs State of U.P.] This is the first remedy against an illegal investigation. The magistrate, thereupon, call the case diary and progress report of investigation from the officer-in-charge of the concerned police station. If he is unable to produce the copy of FIR then Magistrate can direct to stop the investigation. You can also approach the High Court under section 482 CrPC for quashing of the investigation.

If the police officer is investigating the case in absence of the FIR then the court can quash this illegal investigation. You may file a petition before the High Court under section 482 crpc for quashing of the investigation. This section empowers the court to stop the violation of the code of criminal procedure. Investigation without registration of FIR is violative of the provisions of crpc. Thus the High Court may quash such an investigation.