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July 10, 2012

Bail under Sectio 467 120 B and Anticpatory Bail

In General, if only section 420 IPC is charged, then there is no problem in getting Bail. 
The section 467, 468 & 471 are grave in nature.  If there is a women accused, then getting bail is somewhat possible.
The Magistrate does not have jurisdiction to grant bail in cases registered under Section 467 of IPC (forgery), which attracts punishment of 10 years or life imprisonment,
You first apply for Bail before the Lower court and on rejection move the session’s court or high court.
Some experts argue that bail can be granted by Magistrate by invoking sec 437 as
Under Section 437 Cr.P.C
 (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but-

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

As clear from reading of Sec 437, Magistrate has no power to grant bail in case the offences is punishable with death or imprisonment for life; thus in other cases magistrate is free to grant bail.
Also as the offence under 467, is punishable with imprisonment for life, or with imprisonment up to ten years therefore you may start to think that  magistrate can grant bail under sec 467
BUT the word used in Sec 437 is OR, that means either death or life imprisonment, therefore as punishment under 467 has been prescribed with life imprisonment therefore Sec 437 can’t be invoked for bail.
Bail can be rejected, if the prosecution says that there are {materials used for incriminating} are yet to be recovered from you.

120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.


Para I

Punishment—Same as for abetment of the offence which is the object of the conspiracy—According as the offence which is the object of conspiracy is cognizable or non-cognizable—According as offence which is object of conspiracy is bailable or non-bail­able—Triable by court by which abetment of the offence which is the object of conspiracy is triable—Non-compoundable.

Para II

Punishment—Imprisonment for six months or fine, or both—non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.

Sec 120 A Defines Criminal Conspiracy
120A. Definition of criminal conspiracy.- When two or more per­sons agree to do, or cause to be done,—

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agree­ment is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.


It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

Police may arrest you but they are bound to produce you before court within 24 hours. When any accused is produced before court, only court can decide whether the accused should be given police custody remand or magisterial custody remand or he may be released on bail.  The accused has one more remedy to approach District court to get anticipatory bail. The District Court can grant even interim anticipatory bail. Till that time you avoid the police and may temporarily change your place of residence. Still, if the police succeeds in arresting you before getting anticipatory bail (interim or final), you try to get regular bail before magistrate.

Ø  Within 24 hours the accused is produced before Duty Magistrate who decides on remand/judicial custody and date of hearing.
Ø  Next in Lower Court, if the lower court headed by Class I Magistrate does not have the power to grant the bail under the offence, he will dismiss the bail petition.
Ø  Next step in session court, he may either grant/reject bail or dismiss the case if not within his powers.
Ø  Next is High Court.

Anticipatory Bail

It has also been held that anticipatory bail cannot be granted to a person to do some thing which is likely to be interpreted as commission of crime even if the offender intended it as something in exercise of his rights[4]. The expression ‘anticipatory bail’ is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest[5]. The distinction between an ordering order of bail and an order of anticipatory bail is that where as the former is granted after arrest and, therefore, means release from the custody of the police, the later is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest[6].

Sec 438 makes a provision enabling the Superior Court to grant anticipatory bail e.g. A direction to release a person on bail even before a person is arrested.

he Law Commission considered the need for such a provision and observed:
“The necessity for granting anticipatory bails arises mainly because some times influential persons try to implicate theirs rivals in the false cases for the purposes of disgracing them or for other purposes by getting them detained in jails for some days. In recent times, with the accentuation of political rivalry this tendency is showing signs of steady increase. 

“In order to ensure that the provisions is not put to abuse at the instance of unscrupulous petitioners ,the final order should be made only after notice to the public prosecutor . The initial order should only be an interim one .Further , the relevant section should make it clear that the direction can be issue only for reasons to be recorded , and if the court is ratified that such a direction is necessary in the interest of justice”

According to s.438(1) on the application for anticipatory bail can be made to the High Court or Court of Sessions, however , normally it is to be presumed that the court of session would be first approached for the grant of anticipatory bail unless an adequate case is made out straightway approaching the High Court directly without first coming before the court of session .The full bench of the Allahabad High Court has however taken the view that a bail application under s.438 may be moved in the High Court without the applicant taking recourse to the Court of Session[8] for anticipatory bail is rejected , the applicant can again approach the High Court under s.438(1) as there is no bar to do so[9]. As bails are against arrest and detention, an appropriate court within whose jurisdiction the arrest takes place or is apprehended or is contemplate will also have jurisdiction to grant bail to the person concerned .Therefore ,the High Court or the Court of Session having jurisdiction over the place where the arrest is apprehended by the applicant has jurisdiction to entertain application for anticipatory bail even though the F.I.R. might have been registered at a place within the jurisdiction of another High Court or Court o Session .

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