Anticipatory bail is granted under Section 438 of the Criminal Procedure Code. According to it, “ Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; “
Therefore, filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. What Section 438 Cr.P.C. requires is that the applicant is apprehending his arrest on accusation of having committed a non-bailable offence. It is not necessary that at the time of applying for anticipatory bail, the police must have already registered the FIR. Anticipatory bail can be applied even before registration of FIR, provided there is a real apprehension of arrest on accusation of having committed a non-bailable offence.
In this regard it is relevant to point out that
In Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632, a constitutional bench of supreme Court held that 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. Section 438 of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. 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. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested, therefore, Section 438(1) cannot be invoked on the basis and general allegations, as if to arm oneself in perpetuity against a possible arrest.
In K. Rajasekhara Reddy vs State Of A.P. 1998 (4) ALD 677, it was held that filing of an FIR and registration of a crime by the Police is not a condition precedent to the exercise of the power under Section 438 of Cr.P.C. Jurisdiction of the Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under Section 438 of Cr.P.C.
But it Does not mean that an applicant is entitled for the relief under Section 438 of Cr.P.C. on the basis of mere apprehension. The belief entertained by an applicant that he may be arrested for a non-bailable offence must be capable of examining by the Court objectively. There must be clear and definite material before the Court to examine the basis on which the applicant entertained such apprehension. A person invoking the jurisdiction of the Court under Section 438 of Cr.P.C. is duty bound to make available such material to the Court to enable the Court to examine that material objectively and to discern as to whether the apprehension entertained by such person is a reasonable one or not. "a belief can be said to be founded on reasonable ground only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine." In the absence of such material, the Court cannot issue necessary directions to release the applicant in the event of his arrest, as the Court would not be in a position to specify as to in what connection and in respect of what accusation the applicant is required to be released. The Court is bound to indicate as against what accusation a person is required to be released by the Police in the event of arrest. In the absence of tangible material, any direction to release an applicant under Section 438 of Cr.P.C. would amount to grant of a blanket order of anticipatory bail.
In K. Dayanand Rao And Ors. vs State Of A.P. 1992 (3) ALT 21 it was held that "Section 438 Cr.P.C. does not contain a condition that unless the crime number is mentioned or the FIR is filed no application thereunder would lie. Therefore reading into the Section such a condition not imposed by the Statute. Mentioning of crime number in the application under Section 438 Cr.P.C. is not a pre-requisite for its maintainability.”
In Thayyanbadi Meethal Kunhiraman vs S.I. Of Police 1985 CriLJ 1111 the Kerala High Court observed that:
"In order to invoke the provision, it is not necessary that a case has already been registered or even a first information has been lodged."
Similar is the view taken by the Calcutta High Court in Re: Digendra Sarkar and others, 1982 Crl.LJ. 2197. The Calcutta High Court observed:
"The filing of an FIR is not a condition precedent to the application for anticipatory bail and in such case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session, not for the purpose of being taken into custody of the Court but for getting an order for his release in case he is arrested."
Thus the filing of first information report is not a condition precedent to the exercise of the power under section 438 Cr. P.C. But the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
