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

Q.1 What are the judicially settled principles to be borne in mind in the matter of anticipatory bail ? Ans. 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, a Constitution Bench of the Supreme Court of India laid down the following principles:-(a) The term “anticipatory bail” is used to convey that it is an application for bail in anticipation of arrest, i.e. before the arrest itself is made. (Per Ravindra Bhat - J vide paras 7, 23, 46 and 49). However, a person in whose favour a pre-arrest bail order is made under Section 438 Cr.P.C., has to be arrested and when arrested, he has to be released on bail. (Per M. R. Shah - J para 7). (b) Section 438 Cr.P.C. which is pro-liberty is part of fair procedure ensured by Article 21 of the Constitution of India. (Per Ravindra Bhat – J in paras 57 and 86).(c) The difference between “anticipatory bail” under Section 438 Cr.P.C. and “regular bail” under Sections 437 and 439 is the stage at which the bail order is passed. (Per Ravindra Bhat – J in para 7).(d) It is not essential that an application for anticipatory bail should be moved only after an FIR is filed. It can be moved earlier also, as long as the facts are clear and there is reasonable basis for apprehending arrest. Hence, the application seeking anticipatory bail should contain the bare essential facts relating to the offence and why the applicant reasonably apprehends arrest. (Vide the unanimous view of all the Judges in para 92).(e) Depending on the seriousness of the threat of arrest, it may be advisable for the Court which is approached with an application under Section 438 Cr.P.C., to issue notice to the public prosecutor and obtain the complete facts, even while granting limited interim anticipatory bail. (Vide unanimous view in para 92).(f) The order for anticipatory bail should not be a “blanket order” in the sense that it should not enable the accused to commit further offences and claim the relief of indefinite protection from arrest. It should be confined to the offence or incident for which apprehension of arrest is made. It cannot operate in respect of any future incident which may involve the commission of an offence. (Vide unanimous view in para 92).(g) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the roll attributed to the applicant and the facts of the case while considering whether to grant or refuse anticipatory bail. The Court would be free to decide the nature and extent of the restrictions to be imposed having regard to Sections 437 (3) and 438 (2) Cr.P.C. (Vide unanimous view in para 92).(h) An order for anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency to investigate into the charges against the applicant who seeks and is granted pre-arrest bail order. (Vide unanimous view in para 92).(i) The investigating officer would be free to take limited custody or deemed custody of the accused for the purpose of Section 27 of the Evidence Act invoking the principle in State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 = 1960 Cri.L.J. 1504 (SC) = 1960 KHC 732 (SC) – 5 Judges – S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ. However, there would be no need for separate surrender or a need for bail. (Vide unanimous view in para 92)(j) The life or duration of an anticipatory bail order does not normally end with the time and stage when the accused is summoned by the Court or when the charges are framed, but can continue till the end of the trial. However, if there are any special or peculiar features necessitating the Court to limit the tenure of anticipatory bail, it is open to the Court to do so. (Vide unanimous view in para 92 – Per M. R. Shah – J in para 7; Per Ravindra Bhat – J concurring in para 76). Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 = AIR 1980 SC 1632 – 5 Judges – Y. V. Chandrachud – CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ, approved).(k) It is open to the police or the investigating agency to move the Court concerned which granted anticipatory bail for a direction under Section 439 (2) Cr.P.C. to arrest the accused in the event of the violation of any term such as abscondence, non-cooperation with the investigation, evasion, intimidation or inducement to witnesses with a view to influence the outcome of the investigation or trial, as the case may be. (Vide unanimous view in para 92).(l) The correctness of an order granting anticipatory bail can be considered by the appellate or superior court at the behest of the State or the investigating agency and such court can set aside the order on the ground that the court granting it did not take into consideration material facts or crucial circumstances. (Vide...

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

Justice V Ramkumar

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