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Could I get anticipatory bail whereas one co-worker has arrested

I am working in a shop as a salesman. Yesterday my colleague has arrested in connection with the theft of garments. During the lockdown, he has opened the shop with a duplicate key and took away some garments kept in backyard godown. I was also present with him but did not know about the incident. He told me that the owner has ordered to bring those garments.

After a few days, I informed the owner that he is not present in his home and he took some garments from the godown. Thereafter, the owner lodged an FIR and police have arrested him. Could I get anticipatory bail?

Question from: Uttar Pradesh

You have given incomplete information about the whole incident. Police can arrest the accused if he is either named in the FIR or played any role in the commission of the crime. Thus police will arrest you in any of the above-said conditions. Section 41 crpc gives them vast power to arrest the accused during the investigation. 

If you are not named in the FIR

The complainant did not mention your name in the FIR. So you are not a named accused in the said FIR. It shows that complainant had no information about your involvement in the crime. Therefore, I think that the police will not arrest you based on such an FIR. 

Incriminating materials

When the investigating officer finds some incriminating materials during the investigation against you, then he may arrest you. Presence of some incriminating materials is inevitable for the arrest. This is the law of arrest during the investigation. 

If the investigating officer arrests you without any evidence then he commits the offence of wrongful confinement. The wrongful confinement is punishable under section 340 of the Indian Penal Code. 

Illegal arrest violates the fundamental right

Article 21 of the Constitution of India guarantees freedom of life and personal liberty. Illegal arrest violates this fundamental right and the arrested person is entitled to get compensation from the state. 

When the police arrest you without having any incriminating materials then you should file a writ. You may file a writ of habeas corpus before the High Court under Article 226 of the Constitution of India. The court will pass an order to release the arrested person from police custody. 

When the police find some incriminating evidence against you

The investigating officer can arrest you if he got some incriminating evidence during the investigation. Moreover, the arrest is not mandatory in every cognisable offence. 

In Lalita Kumari vs Government of Uttar Pradesh [(2014) 2 SCC 1], the Supreme Court has held that arrest is not mandatory after registration of the FIR. So the police officer should exercise his discretion before arresting a person because there should be some reasonable or credible information against the accused. 

You should file anticipatory bail application under section 438 CrPC

If you apprehend that police can arrest you in said FIR then you should get anticipatory bail. File an application of anticipatory bail before the court of sessions or High Court under Section 438 CrPC

You have some relevant grounds to seek anticipatory bail. Such as:

  • You have informed the complainant (owner) about the offence.
  • No apprehension that you would abscond.
  • You are cooperating in the investigation.
  • No criminal antecedent.

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