Granting Anticipatory Bail : SC Guidelines

Arrest leads to great ignominy

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, says the Supreme Court (SC) in Bhadresh Bipinbhai Sheth v State of Gujarat & Another [ AIR 2015 SC 3090].

Pre conviction arrest is distinct from post-conviction arrest

Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

Arrest is unnecessary in many cases

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.

Court must examine all aspects before denying bail

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 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.

Accused need not make a special case to get bail

There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail.

Interim bail can be granted before hearing the prosecutor

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.

SC guidelines on how to deal with anticipatory bail

The above judgement relies on the paragraph 122 of the judgment in Siddharam Satlingappa Mhetre v State Of Maharashtra And Others [AIR 2011 SC 312], which distinctly delineates the following points that need to be taken into consideration while dealing with anticipatory bail:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. 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;
3. The possibility of the applicant to flee from justice;
4. The possibility of the accused’s likelihood to repeat similar or other offences;
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
7. 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;
8. 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;
9. The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. 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.

SC says indiscriminate arrest violates the human rights

The SC says irrational and Indiscriminate arrests are gross violation of human rights.

In Joginder Kumar v State Of U P [1994 AIR 1349], a three Judge Bench of the SC has referred to the 3rd report of the National Police Commission. The report mentions that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggests that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.

In short, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Reference

1. Bhadresh Bipinbhai Sheth v State of Gujarat & Another [ AIR 2015 SC 3090].
2. Siddharam Satlingappa Mhetre v State Of Maharashtra And Others [AIR 2011 SC 312]
3. Joginder Kumar v State Of U P [1994 AIR 1349]