[BAIL] Questions & Answers By Justice V. Ramkumar- Anticipatory Bail [Part-II]

Ans.

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) 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.
(iii) The possibility of the applicant to flee from justice.
(iv) The possibility of accused’s likelihood to repeat similar or other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in case of large magnitude affecting a very large number of people.
(vii) 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. Cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.
(viii) 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The Court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant.
(x) 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.

(Vide paras 113 and 114 of Siddharam Satlingappa Mhetre v. State of Maharashtra – (2011) 1 SCC 694) – Dalveer Bhandari, K. S. Radhakrishnan – JJ).

NOTE BY VRK: Now, when the amendment of Section 438 Cr.P.C as per Amending Act 255 of 2005 comes into effect, the Court is given the discretion to take into consideration, inter alia the following factors:-
(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 or 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.

Q. 7 What are the principles to be borne in mind while granting anticipatory bail ?

Ans. A Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (Supra - AIR 1980 SC 1125), laid down the following principles with regard to anticipatory bail;
(a) Section 438 (1) is to be interpreted in the light of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
(c) Order under Section 438 would not affect the right of police to conduct investigation.
(d) Conditions mentioned in section 437 cannot be read into Section 438. (This direction is no more good law in view of Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ).
(e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character, this would “not justify the conclusion that the power must be exercised in exceptional cases only”. Powers are discretionary to be exercised in the light of the circumstances of each case.
(f) Initial order can be passed without notice to the public prosecutor. Thereafter notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to the requirements of Section 438 and suitable conditions should be imposed on the applicant.  

(Vide para 109 of Siddharam Satlingappa Mhetre v. State of Maharashtra – (2011) 1 SCC 694) – Dalveer Bhandari, K. S. Radhakrishnan - JJ.

Q. 8 Is not the Court dealing with an application for anticipatory bail entitled to go into the legality of the proposed arrest?

Ans. No. (Vide para 19 of Adri Dharan Das v. State of W.B. – (2005) 4 SCC 303 = AIR 2005 SC 1057 – Arijit Pasayat, S. H. Kapadia - JJ).

Q.9 Is not the Court entitled to pass an interim order restraining arrest of the accused pending consideration of the application for the anticipatory bail ?

Ans. No. (Vide para 18 and 19 of Adri Dharan Das v. State of W.B. – (Supra - AIR 2005 SC 1057). This decision has been disapproved in Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ, only on the question of limited duration of the operation of the anticipatory bail order and not on the present question). Court cannot issue a blanket order restraining arrest under Section 438 (1) Cr.P.C. Parvinderjit Singh v. State (U.T. of Chandigarh) (2008) 13 SCC 431 = AIR 2009 SC 502 – Dr. Arijit Pasayat, C. K. Thakker - JJ; Rashmi Rekha Thatoi v. State of Orissa (2012) 5 SCC 690 – K. S. Radhakrishnan, Dipak Mishra - JJ; Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra 2021 (3) KHC 25 SC – 3 Judges - Dr. D. Y. Chandrachud, M. R. Shah, Sanjiv Khanna - JJ. The Court can, however, issue an interim order for anticipatory bail pending the application under Section 438 (1) Cr.P.C. and it must also conform to the requirement under Section 438 (1) Cr.P.C. (Paras 33 and 36 of Rashmi Rekha Thatoi v. State of Orissa – (2012) 5 SCC 690) – K. S. Radhakrishnan, Dipak Misra - JJ.

NOTE BY VRK: The above was the position even prior to the amendment of Section 438 Cr.P.C by Amending Act 25 of 2005. As and when the above amendment comes into force, the High Court or the Court of Session will have the power to issue an interim order for anticipatory bail as proposed to be provided under sub-section (1) of Section 438 Cr.P.C.

But, in Kum. Hema Mishra v. State of U. P. (2014) 4 SCC 453 = AIR 2014 SC 1066 – K. S. Radhakrishnan, A. K. Sikri - JJ, a two – Judge Bench of the Supreme Court has held that when there is no alternate remedy, in order to prevent miscarriage of justice and abuse of the process of law by authorities, High Court can grant interim protection from arrest, although such power has to be exercised very cautiously.

NOTE BY VRK: With due respect, this decision runs counter to the law laid down as above. Even in such a contingency, why not the Court concerned give an interim Anticipatory Bail instead of passing a “don’t arrest order” or an “interim protection order” ?

Q.10 During the pendency of an application for anticipatory bail, can the accused be arrested by the police officer in the absence of any interim order or direction by the Court?

Ans. Yes. In order to make the position beyond any ambiguity, a proviso is sought to be inserted in Section 438 (1) Cr.P.C as follows:-

“Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in- charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.”