PRINCIPLES FOR GRANT OF ANTICIPATORY BAIL

[Mr. M. GOVINDARAJAN]

In its 41^st  report, the Law Committee recommended to include the procedure for giving anticipatory bail in criminal law.   Accordingly Section 438 was included in Criminal Procedure Code, which deals with giving anticipatory bail by Court in anticipation of arrest on accusation of having committed a non bailable offence.  The opposite party is required to be given notice by the Court on receipt of anticipatory bail.  The opposite party can contest the case before the Court.   The  anticipatory bail is a direction to release a person on bail,  issued even before the person is arrested.

The High Court or the Court of Sessions may impose such conditions as it thinks fit including-

• A condition that the person shall make himself available for interrogation by the police officer as and when required;
• A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
• A condition that the person shall not leave India without the previous permission of the court.

Appeal may be filed against the rejection of anticipatory bail.  The Court may cancel the bail issued on the circumstances of case.  There is much litigation on the grant of anticipatory bail. 

The Supreme Court in ‘Bhardresh Bibinbhai Sheth V. State of Gujarat and other’ – 2016 (2) TMI 416 - SUPREME COURT the Supreme Court laid down the principles for grant of anticipatory bail as detailed below:

• The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion.  The court should also examine the fact where there is family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law.   If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law;
• The gravity of charge and the exact role of the accused must be properly comprehended.   Before arrest, the arresting Officer must record the valid reasons which have led to the arrest of the accused in the case diary.  In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court;
• It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case.  The discretion to grant bail must be exercised on the basis of available material and the facts of the particular case.   In cases where the court is of the considered view that the accused has joined the investigation and he is fully co-operating the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.  A great ignominy, humiliation and disgrace is attached to arrest.  Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community.   Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage;
• There is no justification for reading into Section 438 of CrPC the limitations mentioned in Section 437 CrPC.  The plenitude of Section 438 must be given its full play.  There is no requirement that the accused must make out a special case for the exercise of the power to grant anticipatory bail.   This virtually reduces the salutary power conferred by Section 438 CrPC to a dead letter.  A person seeking anticipatory bail is still a free man entitled to the presumption of innocence.   He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail;
• The power of course of action on an application for anticipatory bail ought to be that after evaluating the averments and the accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor.   After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail.  The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused.   The anticipatory bail granted by the court should ordinarily be continued till the trial of the case;
• It is settled legal position that the court which grants the bail also has the power to cancel it.   The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or by the complainant, on finding new material or circumstances at any point of time;
• In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail;
• Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise.  Similarly the discretion vested with the Court under Section 438 Cr.PC should also be exercised with caution and prudence.   It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self imposed limitations;
• No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail.   In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of the case;

The Supreme Court further provides the factors and parameters that are needed to be taken for consideration while dealing with anticipatory bail as held in ‘Siddharam Satlingappa Mhetre V. State of Maharashtra’ – 2010 (12) TMI 1085 - SUPREME COURT:

• The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
• The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
• The possibility of the applicant to flee from justice;
• The possibility of the accused’s likelihood to repeat similar or other offences;
• Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
• Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
• The courts must evaluate the entire available material against the accused very carefully.  The court must also clearly comprehend the exact role of the accused in the case.  The case in which the accused is implicated with the help of Section 34  and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
• While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
• The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
• Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.