Know about ANTICIPATORY BAIL and tell everyone about it. As per Section 438 of Cr.P.C., if any person has reason to believe that he would be arrested on accusation of having committed non-bailable offence, he may seek for the relief of anticipatory bail. The Constitutional Bench of the Apex Court in the case of GURBAKSH SINGH SIBBIA VS. STATE OF PUNJAB [1980 SCC (CRI) 465] has held that, mere fear on the part of the applicant that he may be arrested, cannot be a ground for granting anticipatory bail. It is further held that the expression reason to believe occurring in Section 438 Cr.P.C shows that the belief that the applicant may be so arrested must be founded on reasonable grounds and mere fear is not belief ; for that reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him and in pursuance of which, he may be arrested and the ground on which the belief of the applicant is based that he may be arrested for non- bailable offence, must be capable of being examined by the Court objectively. In the case of BHARAT CHAUDHARY VS. STATE OF BIHAR reported in (2003) 8 SCC 77, the Apex Court has held that, mere fact of taking cognizance or filing of charge sheet, is not by itself a bar against grant of anticipatory bail. The relevant observations are found in Para-7 of the judgment, which reads as under:- From the perusal of this part of Section 438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e., the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so. In the case of VENKATACHALAIAH AND OTHERS VS. STATE OF KARNATAKA BY KADUGODI POLICE, BANGALORE, reported in ILR 2003 KAR 3985, this Court has held that, the apprehension of the applicant becomes certain that he would be arrested once a charge sheet is filed or warrant is issued by the Magistrate. Therefore, filing of a charge sheet and issuance of warrant are certainly the grounds which make the person not only to believe that he would be arrested, but also he can move the Courts under Section 438(1) Cr.P.C. Therefore, for the aforesaid reasons, it is clear that filing of the charge sheet and the jurisdictional Court taking cognizance thereon are no grounds to hold that the Court has no power to grant the relief of anticipatory bail. No doubt, the learned Special Judge after taking cognizance of the offences alleged in the charge sheet, directed issue of summons to the petitioner and other accused persons and not warrant. In a recent decision in the case of Siddaharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, the Honble Supreme Court, following the law laid down by the Constitutional Bench of the Apex Court in Gurbaksh Singh (supra), has set-out the factors and parameters that have to be taken into consideration while dealing with the anticipatory bail in Para-112, as under. 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 the accuser’s likelihood to repeat similar or the 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 cases 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. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian 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; 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 witness 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.
Posted on: Sat, 27 Dec 2014 13:13:02 +0000