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TMI Blog2012 (3) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... olence. The order dehors the grounds provided in Section 438 Cr.P.C. itself suffers from nonapplication of mind and therefore, cannot be sustained in the eyes of law. X X X X Extracts X X X X X X X X Extracts X X X X ..... anticipatory bail application, which read as under: "438. Direction for grant of bail to person apprehending arrest.-(1) Where 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 that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:- (i) The nature and gravity of the accusation; (ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail." 8. In view of the above, it is mandatory on the part of the court to ensure the compliance of the pre-requisite conditions for grant of anticipatory bail including the nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the urinary bladder was found full. Stomach contained about 20 cc food without alcoholic smell. Skull and brain showed nothing particular. Opinion Death resulted from hemorrhage and both due to fire arm injuries mentioned above." 10. The learned Sessions Judge did not consider it proper to grant anticipatory bail, rather rejected the same after considering the submissions made on behalf of the said accused persons observing that the court had perused the Case Diary, para 90 of which revealed a very strong motive. There was material against the said accused in the case diary. The deceased had received multiple abrasions and 5 gun shot injuries, thus, it was not a fit case to enlarge the accused on anticipatory bail. 11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/complainant. 12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction of a provision for grant of anticipatory bail wherein it has been observed that "power to grant anticipatory bail should be exercised in very exceptional cases". 16. Ms. Kavita Jha, learned counsel appearing for the accused/respondents has vehemently advanced the arguments on the concept of life and liberty enshrined in Article 21 of the Constitution of India placing a very heavy reliance on the observations made by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312, and submitted that unless the custodial interrogation is warranted in the facts and circumstances of the case, not granting anticipatory bail amounts to denial of the rights conferred upon a citizen/person under Article 21 of the Constitution. We are afraid the law as referred to hereinabove does not support the case as canvassed by learned counsel for the accused-respondents. More so, the Constitution Bench of this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, while summing up the law in para 368, inter-alia, held as under: "Section 20(7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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. 123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. 124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record." 18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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