Principles to be followed by Courts while granting/ rejecting Anticipatory Bails #indianlaws

The expression “may, if it thinks fit” occurring in Section 438(1) of the Code of Criminal Procedure (Code), gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”.

Supreme Court in the present matter propounded legal principles based on which plea of anticipatory bail should be considered.

Appellant in the instant appeals had challenged the validity of impugned judgment of the High Court whereby the anticipatory bail granted by the Sessions Judge was cancelled. The case was in the context of filing of complaint alleging harassment meted out to complainant over a period of time at the hands of her neighbor. The allegations included those of rape, emotional blackmail and threats. There were infact two complaints and in the later allegation of rape was missing. FIR was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed against the Appellant who was later admitted to bail. During the pendency of trial after several years, the prosecutrix made an application for addition of charge under Section 376 IPC as well. Court held that such application could be taken into consideration only after chief examination of the complainant. This order was challenged before the Session Judge and the matter was remanded back to the Metropolitan Magistrate with a direction that the application be heard afresh in its entirety after giving opportunity to both parties. Special investigation was directed to be carried out by Police. Proceedings were again challenged before different courts in hierarchy and eventually Police filed a revised charge sheet stating that a prima facie case under Section 376 IPC was also made out.

The proceedings were thereafter committed to the Sessions Court and the Appellant was taken into custody. However, execution of the custody order was put to stay till specified date during which the Appellant sought for grant of anticipatory bail, which was granted. This order of grant of anticipatory bail was challenged and the High Court vide impugned order cancelled the anticipatory bail. Appellant pleaded acquaintance with the prosecutrix and consensual physical relationship, if any.

The Court however restricted itself to the question as to whether in the circumstances of the present case, Appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail.

It was observed and held that in a matter like this where allegations of rape pertain to the period which almost 17 years ago and when no charge was framed under Section 376 IPC initially (in the year 2001), and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC was added only in the year 2014, there was no reason why the Appellant should not be given the benefit of anticipatory bail. Merely because the charge under Section 376 IPC, which is a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor.

The Court observed that the expression “may, if it thinks fit” occurring in Section 438(1) of the Code of Criminal Procedure (Code), gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”.

The following principles were laid down by the Court:

  1. 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 whether there is any 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.
  2. 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.
  3. 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 the 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 cooperating with 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.
  4. There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude 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.
  5. The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and 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 court would certainly be entitled to impose conditions for the grant of anticipatory 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.
  6. It is a 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 the complainant, on finding new material or circumstances at any point of time.
  7. 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.
  8. 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 CrPC 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.
  9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised 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 each case.
  10. Factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a)        The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b)        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;

(c)        The possibility of the applicant to flee from justice;

(d)       The possibility of the accused’s likelihood to repeat similar or other offences;

(e)        Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f)        Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g)        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 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;

(h)        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;

(i)         The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j)         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 in entitled to an order of bail.

The impugned judgment was accordingly set aside by the Apex Court. The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506(2) IPC, and during all these periods, the appellant has participated in the proceedings. There was no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there was a serious charge levelled against the Appellant,  that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view of the above mentioned factors.

Bhadresh Bipinbhai Sheth vs. State of Gujarat & Anr.

SC, 01.09.2015

Criminal Appeal No. 11340 of 2015