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TMI Blog2023 (7) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts - firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC. Once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act. 4. The appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, Gumla, Jharkhand; that application was dismissed on 28.06.2022. The appellant then approached the Jharkhand High Court seeking anticipatory bail on 05.07.2022. All this while, the appellant cooperated with the investigation, and after its completion, a charge-sheet was filed before the Sessions Judge. 5. Cognizance was taken on 01.10.2022 by the Sessions Court. The Sessions Court noted in this order that on 08.08.2022, the High Court had protected the appellant with the interim order directing that he may not be arrested. When the application was heard by the High Court next on 18.01.2023, without adverting, the pending anticipatory bail was rejected, and the High Court went on to direct the appellant to surrender before the competent Court and seek regular bail. The relevant extracts of the High Court impugned order [A.B.A. No. 5771 of 2022 dated 18.01.2023] read as follows: Considering the facts and circumstances of the case and rival contentions of the learned counsel, I found that there are seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial home just about one and a half months after their marriage and that she had even been threatened with loss of life. It was highlighted that according to the complainant, the threat extended to the one that she would be injected in such a manner that medical evidence would disclose that she had died of a heart attack. Analysis 9. This court has emphasised the values of personal liberty in the context of applying discretion to grant bail. It has been ruled, in a long line of cases that ordinarily bail ought to be granted and that in serious cases which are specified in the provisions of the CrPC (Section 437) which involve allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion. The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified and ought to impose conditions spelt out in Section 437(3) CrPC [by virtue of Section 438(2)]. The necessity to impose other restrictive conditions, would have to be weighed on a caseby-case basis, and depending upon the materials produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. ********************************* 85.4. Courts ought to be generally guided by the considerations such as nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years. 11. The decisions cited by counsel are useful and valuable guides with respect to the powers of the police, the discretion and the duties of the court in several kinds of cases, including those relating to the matrimonial offences such as 498A of IPC, and other cases. In Arnesh Kumar (supra), it was held that: 9. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the officer to arrest the accused. 12. In the present case, this Court is of the opinion that there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for this Court. However, what is a matter of record is that the time when the anticipatory bail was pending can be divided into two parts - firstly, when there was no protection afforded to him through any interim order (between April 2022 and 08.08.2022). Secondly, it was on 08.08.2022 that the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC. Significantly, the investigation was completed, and chargesheet was filed after 08.08.2022, and in fact cognizance was taken on 01.10.2022 by the Sessions Judge. These factors were of importance, and though the High Court has noticed the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. We hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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