In one of our previous articles we discussed the concept of a FIR (First
Information
Report) and how to lodge one in a police station. In this article we will
discuss the
steps that a person can be take when an FIR has been lodged against them.
The first thing a person has to do is to enquire as to whether the FIR
has been
lodged for a bailable or a non-bailable offence. A bailable offence is
one in
which bail may be asked for as a matter of right. A non- bailable offence
is one
where only in certain contingencies will bail be granted.
Depending on the kind of offence that the police have registered, a person
should
apply for bail under the relevant provisions of the Code of Criminal Procedure,
1973 (CrPC). If a person has been accused in the FIR of an offence other
than a
non-bailable offence, he can move a bail application in the High Court
or
sessions court under Sec 436 of the Criminal Procedure Code.
Sec 436 provides that when any person other than a person accused of a
non
bailable offences is arrested or detained without warrant by an officer
in charge of
a police station, or appears or is brought before a court, and is prepared
at any
time while in the custody of such officer or at any stage of the proceeding
before
such Court to give bail, such a person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, instead
of taking bail
from such person, discharge him on his executing a bond without sureties
for his
appearance.
Persons within S 436 cannot be taken into custody unless they are unable
or
unwilling to offer bail or execute a bond.
This section contemplates two kinds of security -
A personal recognizance
Security with sureties.
Court has held that pre trial release should be granted in appropriate
cases on
personal bond of the accused without surety and without any monetary obligation
if the court is satisfied that the accused has his roots in the community
and is not
likely to abscond.Under S439(2) specific powers have been given to the
High Court
and the Sessions court to cancel bail even in bailable offences.
In case of a FIR being lodged for a non-bailable offence, person who apprehends
an arrest should immediately apply for Anticipatory Bail. Sec 438 of the
Criminal
Procedure Code deals with the concept of Anticipatory Bail. Sec 438(1)
provides
that when any person has reason to believe that he may be arrested on an
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, and that
Court may,
if it thinks fit, direct that in the event of such arrest he shall be released
on bail.
The distinction between an ordinary bail and anticipatory bail is that
the former
being after arrest means release from custody of police, the latter being
in
anticipation of arrest is effective at the very moment of arrest.
Sec 437 of the Criminal Procedure Code deals with the power of courts other
than
High Court or court of session in the matter of granting or refusing ordinary
bail in a
non bailable offence. Sec 439 of the Criminal Procedure Code deals with
the
special power of the High Court or Court of Session regarding bail. The
discretionary powers of the High Court or the court of sessions under this
section is
considerably wider than the powers of the magistrate in S437.
In conclusion it can be said that the most important step for a person
against whom
a FIR has been lodged is to obtain appropriate Bail. It would be advisable
that
legal counsel be hired to obtain such bail.