Sunday, 13 March 2016

Leading caselaw on grant on anticipatory bail

 Another case to which we would like to refer is the judgment of a
Division Bench of this Court in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694
. This case lays down an exhaustive commentary of 
Section 438 of the
Code covering, in an erudite fashion, almost all the aspects and in
the process relies upon the aforesaid Constitution Bench
judgment in Gurbaksh Singh's case. In the very first para, the
Court highlighted the conflicting interests which are to be
balanced while taking a decision as to whether bail is to be
granted or not, as is clear from the following observations:
“1. Leave granted. This appeal involves issues
of great public importance pertaining to the
importance of individual's personal liberty and
the society's interest. Society has a vital interest
in grant or refusal of bail because every criminal
offence is the offence against the State. The
order granting or refusing bail must reflect
perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the
interest of the society. The law of bails dovetails
two conflicting interests, namely, on the one
hand, the requirements of shielding society from
the hazards of those committing crimes and
potentiality of repeating the same crime while on
bail and on the other hand, absolute adherence
to the fundamental principle of criminal
jurisprudence regarding presumption of
innocence of an accused until he is found guilty
and the sanctity of individual liberty.”
23. The principles which can be culled out, for the purposes of the
instant case, can be stated as under:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) We shall also reproduce para 112 of the judgment wherein the
Court delineated the following 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 overimplication 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.REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1134-1135 OF 2015
[arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]
BHADRESH BIPINBHAI SHETH .....APPELLANT(S)
VERSUS
STATE OF GUJARAT & ANOTHER .....RESPONDENT(S)
Citation;(2016)1 SCC152
A.K. SIKRI, J.


2. The appellant herein, in these appeals, challenges the validity of
the judgment dated 18.07.2014 passed by High Court of
Judicature at Gujarat cancelling the anticipatory bail which was
granted to the appellant by the Additional Sessions Judge, Court
No.16 of Ahmedabad City Sessions Court.
3. Before coming to the factual narrative of a long drawn event that
has taken place in respect of criminal trial pending against the
appellant, we would like to state, in capsiculated manner, the
circumstances under which the matter has landed up in this
Court.
The appellant and respondent No.2 (hereinafter referred to
as the 'prosecutrix') were neighbours at the relevant time and
known to each other. On 29.05.2001, the prosecutrix wrote a
complaint to the Assistant Police Commissioner, Crime Branch,
Gaekwad Haveli, Ahmedabad City alleging the harassment that
was meted out to her by the appellant over a period of time.
Allegations of rape, emotional blackmail and threats were levelled
against the appellant therein. After two days i.e. on 31.05.2001,
her statement was recorded by a Police officer of the concerned
Police Station wherein she again levelled the allegations of
maltreatment, blackmail etc. However, in this statement of hers,
which was recorded by the Investigating Officer (I.O.), allegations
of rape were conspiciously missing. On the basis of statement
made on 31.05.2001, F.I.R. was registered and charge under
Section 506(2) of Indian Penal Code (IPC) was framed in the year
2001. The appellant was admitted to bail in the said case. Trial
has proceeded which has not made much headway for number of
years. In the year 2010, the prosecutrix made an application for
addition of charge under Section 376 IPC as well. The
Metropolitan Magistrate held that the said application should be
taken into consideration only after chief examination of the
complainant. The prosecutrix challenged the said order before
the Court of City Session Judge at Ahmedabad. The matter was
remanded back to the Metropolitan Magistrate with a direction
that the application shall be heard afresh in its entirety after giving
opportunity to both parties. On 31.03.2012, the Metropolitan
Magistrate directed the Police to carry out special investigation
under Section 173(8) of the Code of Criminal Procedure
(hereinafter referred to as the 'Code'). Being not satisfied, the
parties challenged the above order. The matter travelled up to
this Court wherein certain directions were issued. Ultimately, the
Police filed a revised chargesheet stating that a prima facie case
under Section 376 IPC was also made out. In view of addition of
charge under Section 376 IPC, the Magistrate passed the order
on 25.04.2013 for committal of proceedings to the Sessions Court
and taking the appellant into custody. However, execution of this
order for taking the appellant into custody was stayed till
07.05.2013. During this period, the appellant moved the City
Sessions Court No.16 at Ahmedabad for grant of anticipatory bail
which was ultimately granted on 18.05.2013. Against this order of
grant of anticipatory bail, the prosecutrix filed criminal revision
petition which has been allowed by the High Court vide impugned
order dated 18.07.2014 cancelling the anticipatory bail granted to
the appellant. As pointed out above, it is the justification and
legality of this order which is in question before us in the instant
appeals.
4. The aforesaid brief resume depicts that the charge was framed
against the appellant initially in the year 2001 only under Section
506(2) of IPC. Insofar as charge under Section 376 of IPC is
concerned, it is added only in the year 2014. Further, the original
charge was framed under Section 506(2) IPC on the basis of the
statement recorded on 31.05.2001 which was treated as FIR and
which did not contain the allegation of rape. If one has to go by
these facts, coupled with the fact that allegation of rape is of the
year 1997-98, one may not find fault with the order of the
Additional Session Judge granting anticipatory bail. However, the
impugned order passed by the High Court whereby the
anticipatory bail order of the Additional Session Judge is
cancelled, does not take the matter in such a simplistic manner
and, therefore, a detailed discussion on the issue has become
imperative.
5. The High Court took note of the circumstances which led to the
addition of charge under Section 376 IPC at a belated stage.
Thus, it would be necessary to take stock of those detailed events
and thereafter decide as to whether the order of the High Court is
sustainable or not. These facts are recapitulated with elaboration
which is absolutely necessary for our purposes, as under:
6. As mentioned above, before registration of the FIR on
31.05.2001 on the basis of the statement, the prosecutrix had
filed a complaint on 29.05.2001 before the Assistant
Commissioner of Police, Crime Branch. In this complaint, she
stated that she is a housewife and had been residing at 1,
Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for
1½ years. She further mentioned that prior to shifting to this
place, she was residing with her in-laws at Sanand for 10 years.
She was married, with three children, and her husband was a
Jeweller. She alleged in the complaint that about 2½-3 years prior
thereto, she had gone to C.N. Vidhyalaya where her daugher
Devel was studying. To return home, she was to catch a Bus.
When she was standing at the Bus Stand, the appellant, who was
her neighbour, passed through that place in his car and on seeing
the prosecutrix, he asked her to sit in the car as he was also
going home. Though, she initially refused but thereafter she sat
in the car being unaware of his malafide intentions. Thereafter,
he took the car to some uninhabited place near Telav Village,
beat her and forcefully raped her. He also threatened her not to
narrate the above incident to anybody. Being scared of these
threats, she did not tell the incident to anybody. Taking benefit of
the circumstances, after one month he repeated the act of rape
by giving the threat that if the prosecutrix did not agree, he would
tell her husband and others. He took her to Hotel Ellis Town and
raped her against her wishes. After that, he threatened her of
dire consequences saying that he had taken her photographs.
This way he continued to keep relations with the prosecutrix.
This complaint further states that she shifted to Ahmedabad but
even after coming to Ahmedabad, he started sending letters with
the threat to defame her. At that stage, she told her husband and
in-laws. She went to Jyoti Sangh, a NGO and encouraged by
their support, she lodged the complaint of continuous harassment
on the part of the appellant.
7. On 31.05.2001, her statement was recorded in the Police Station
by the IO in which the allegations of misbehaviour by the
appellant are contained and the entire statement reads as under:
“The plaintiff Manishaben dictates that though
the complaint is lodged against the defendant
Bhadresh, he is not impoved till today. Our
condition is becoming worst day by day. In
these two days, Bhadresh is making horrible
face reading while our access and is doing
abusive and filthy behaviour. Yesterday, during
the night hours at about 8.15 hours, mother of
Bhadresh was speaking in a very loud tone in a
way that I can hear the same as they are
residing in front of us that we will pay
maintenance and Bhadresh himself was
speaking like this and telling me to live as his
KEPT is also speaking like this. He is laughing
in a satire manner in front of my house and he is
also behaving with my husband in a abusive
manner which could not be borne or disclosed.
At this time, when we left from Sanand to come
to Ahmedabad, workman of Bhadresh was
chasing us and was behind us for about 3 to 4
km and I do not know if any other associates
were of him or not going ahead, but his
associates are remaining present surrounding
me in a manner that he was keeping our watch
chasing us even though I myself or my husband
were not speaking anything. Now, I am worried
about my daughter who is growing and
becoming young because Bhadresh is also
looking to her with bad intention. His intention
appears to be mal.
I have dictated the above statement in full
sound state of mind and without any undue
pressure.
Before me Sd/- Manish K Mehta
Vandana Patva Date: 31.05.2001
31.05.2001”
8. During preliminary inquiries, the Police recorded the statements
of counsellors of Jyoti Sangh who confirmed that the prosecutrix
had made the statement to them regarding alleged rape by the
appellant. Be that as it may, the FIR was registered only under
Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II.
 and on that basis, charge was framed only under the
aforesaid Section on 25.06.2001. Further for one reason or the
other, the prosecution case even under the said charge did not
make any substantial progress.
9. On 07.12.2010, an application was moved by the prosecutrix for
amending the charge by including the offence under Section 376
IPC as well on the basis of complaint dated 29.05.2001 and
treating the same as FIR. Initially, the Metropolitan Magistrate did
not agree with this request and passed an order to the effect that
till the examination-in-chief of the prosecutrix was recorded, it was
not justifiable to amend/alter the charge. However, in the revision
petition filed against that order, the Sessions Court remanded the
case for fresh consideration. After remand, the order dated
31.03.2012 was passed by the Metropolitan Magistrate directing
further investigation under Section 173(8) of the Code implying
thereby that the necessity of framing of such charge would
depend upon the investigation carried out by the Police. Without
stating the details, it suffices to mention that the matter was taken
by all the parties to the Sessions Court and then to the High
Court. Thereafter, the prosecutrix even came up to this Court by
way of SLP (Crl.) No.636/2013 against the order dated
23.10.2012 passed by the High Court which had upheld the order
of the Magistrate who had already ordered further investigation.
Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013
taking note of the fact that though the Metropolitan Magistrate had
ordered further inquiry by the Police on 31.03.2012 with direction
to submit the report within four weeks, no such report had been
submitted till that date. On that basis, following order was
passed:
“We are informed that till today the police has
not submitted the final report pursuant to the
order passed by the Magistrate. If that is so, we
are both surprised and pain at the inaction of the
police and we direct the Investigating Officer of
Criminal Case No. 51 of 2011, pending before
the Metropolitan Magistrate, as directed by the
Magistrate, and submit the final report within four
weeks from the date of receipt/production of a
copy of this order before him.
In view of the above direction, the petitioner
does not wish to press this special leave petition
any longer. It is dismissed as not pressed.”
10. Thereafter, the Police completed the investigation and submitted
the report. The Police filed the chargesheet adding Section 376
of the IPC against the appellant and on that basis, an order was
passed by the Additional Chief Metropolitan Magistrate on
25.04.2013 thereby committing the case to the Sessions Court
and further directing that the appellant be taken into judicial
custody, cancelling the bail bond. It is in these circumstances the
appellant moved an application for grant of anticipatory bail to the
said Sessions Court which was granted on 18.05.2013. As
already noted above, the order granting bail to the
appellant/accused has been cancelled by the High Court.
11. Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel
appearing for the appellant took us through the material on record
on the basis of which it was sought to be argued that there was
acquaintance between the appellant and the prosecutrix and the
circumstances indicate that the physical relationship, if any, was
consensual. It was also submitted that in her statement recorded
before the IO on 31.05.2001, there was no allegation of rape;
even when the charge was framed under Section 506(2) IPC the
prosecutrix did not object to the framing of the said charge
simplicitor or insist upon addition of charge under Section 376 of
IPC as well; after a gap of more than 9 years from the framing of
charge, application was moved for this purpose; in the fresh
chargesheet filed by the IO, the IO clearly observed that no other
circumstantial evidence could be collected regarding the rape as
alleged by the complainant except her statement. It was also
submitted that in the complaint made to Jyoti Sangh, NGO, at the
end of the complaint which was given by the prosecutrix, there
was a noting that no action be taken on the said complaint as the
parties were trying to arrive at amicable settlement. The noting
reads as under:
“This case file be kept pending and whenever
we want, only then, you do contest this case
again and it is the wish of both of them, this case
is kept pending.
Before me Sd/- Manisha K. Mehta
Vandana Patva 29.03.2001
29.03.2001.”
It was also pointed out that between 2001 and 2010, the
prosecutrix did not appear to give her statement. However, the
statement of one Vandana Patva, counsel in the said NGO was
recorded. Mr. Dave referred to the cross-examination of the said
witness wherein this witness had admitted that in the statement
dated 31.05.2001 recorded by the Police, no fact regarding rape
was stated. It was also not mentioned as to at which place and at
what time, incident of rape had taken place. The learned senior
counsel, thus, submitted that in these circumstances the learned
Additional Session Judge rightly granted anticipatory bail. The
reasons adopted by the High Court in cancelling the bail were
commented upon by the learned counsel as not based on record,
particularly, the observations of the High Court that the
prosecutrix had to run a marathon for getting her complaint
registered as a FIR and more particularly for addition of charge
under Section 376 of IPC. They further submitted that the High
Court wrongly recorded that the Sessions Court had failed to
assign proper reasons for grant of anticipatory bail. It was
pointed out that the move on the part of the appellant in filing
criminal cases against the husband of the prosecutrix, in which
the prosecutrix husband was acquitted, is treated by the High
Court as tampering with the evidence by disturbing the witnesses
and on that basis, it is observed by the High Court that the
appellant was not entitled to the benefit of anticipatory bail.
Submission in this behalf was that even if the complaint or cases
lodged by the appellant against the husband of the prosecutrix
are presumed to be false, they had nothing to do with the instant
case and, therefore, such acts on the part of the appellant could
never be treated as tampering with the evidence.
12. The prosecutrix appeared in person and argued her case. She
extensively took us through the counter affidavit filed by her in
opposition to the present proceedings on the basis of which she
hammered the following aspects:
(a) The prosecutrix was harrased by the appellant. First act of sexual
intercourse was against her wishes and was clearly a rape. After
committing this rape, the appellant threatened her and started
blackmailing her. On that basis, he took undue advantage of the
hapless condition of the prosecutrix in which she was placed and
committed subsequent acts of intercourse against her wishes
which were nothing but commission of offences under Section
376 of IPC.
(b) Various letters were written by the appellant not only to the
prosecutrix but to her other family members as well, which
showed his continued harassment to the prosecutrix and her
family members.
(c) The appellant was even having an evil eye on the prosecutrix's
daughter who was of growing age and wanted to blackmail the
prosecutrix in this behalf as well.
(d) In order to harass the prosecutrix, the appellant even foisted false
cases on the husband of the prosecutrix in order to pressurize the
prosecutrix to withdraw the case in question.
(e) She also submitted that not only in the complaint made to Jyoti
Sangh on 19.03.2001, she had levelled allegations of rape, but
such allegations were also made in her complaint to the ACP on
29.05.2001. According to her, in fact, the statement which was
recorded on 31.05.2001 by the IO was not correctly recorded who
intentionally omitted her statement concerning her rape by the
appellant, though specifically stated. It is because of this reason
that she had to file the application in the trial court for inclusion of
charge under Section 376 IPC with the prayer that complaint
dated 29.05.2001 before the ACP should be treated as the FIR
and not the statement dated 31.05.2001 recorded by the IO.
(f) She also submitted that she had to come up to this Court to have
the charge for offence under Section 376 of IPC framed against
the appellant.
13. Ms. Hemantika Wahi, learned counsel appearing for the State,
supported the plea of the prosecutrix. Her submission was that
once the charge under Section 376 IPC has been added which
was a serious charge and the offence being non-bailable, the
proper course of action was to direct the appellant to surrender
before the trial court and apply for regular bail. Her submission
was that having regard to the seriousness of this charge, it was
not a case of anticipatory bail.
14. We have given our thoughtful and serious consideration to the
aforesaid submissions on the charges, particularly, keeping in
mind that there is a charge of rape against the appellant and the
case projected by the prosecutrix is that as a helpless and weak
soul, she has been immensely harrassed, physically abused and
mentally tortured by the appellant.
15. In the first place, it is necessary to remind ourselves that in the
present proceedings, this Court is concerned not about the
feasibility of framing of the charge under Section 376 IPC or merit
thereof but to the grant of anticipatory bail to the appellant.
Therefore, the arguments of the prosecutrix that such a charge is
rightly framed and the submissions on behalf of the appellant
attempting to find the loopholes and the weakness in the
prosecution case, would not be of much relevance to the issue
involved. At this stage, it cannot be said as to whether there was
any physical relationship between the appellant and the
prosecutrix and, if so, whether it was consensual and, therefore,
no charge of rape was made out. The fact remains that a charge
of rape has been framed. It would ultimately be for the trial court
to arrive at the findings as to whether such a charge stands
proved or not, on the basis of evidence that would be produced
by the prosecution in support of this charge. With these
preliminary remarks, we advert to the core issue, namely, whether
in the circumstances of this case, appellant was entitled to
anticipatory bail or not and whether the High Court was justified in
cancelling the anticipatory bail.
16. For this purpose, we would first highlight the admitted position
which runs as follows:
The allegations of rape go back to the years 1997-1998. No
doubt, in the statement dated 19.03.2001 given to NGO Jyoti
Sangh by the prosecutrix, she had levelled the allegations of
rape. Equally, no doubt, she had repeated these allegations in
her complaint to ACP on 29.05.2001 as well. However, for some
curious reasons, the allegations of rape did not find mention in
her statement recorded by the IO on 31.05.2001 on the basis of
which FIR was registered. This possibility cannot be ruled out
that the IO did not record the statement correctly and intentionally
omitted to mention about the allegations of rape. Whether this, in
fact, happened would be tested during trial. However, the fact
remains that when the FIR was registered on the basis of
statement recorded on 31.05.2001 and the chargesheet was filed
making out a prima facie case only under Section 506(2) of IPC,
the prosecutrix did not say anything at that time. There was no
protest even when charge was framed by the concerned
Magistrate only under Section 506(2) IPC. The objection in this
regard was raised for the first time in the year 2008 i.e. almost 7
years after the framing of the charge and application was filed in
the year 2010 for including the charge under Section 376 IPC as
well on the ground that her complaint to the ACP given on
29.05.2001 be treated as FIR. The prosecutrix may have valid
reasons for this delay. However, it is not for us to go into the
same at this stage inasmuch as that is again a matter of trial and
it would be for the Sessions Court to ultimately adjudge as to
whether such delay was suitably explained and/or has any
bearing on the merits of the charge. It is reiterated at the cost of
repetition that we have to simply decide the question of feasibility
of grant of anticipatory bail.
17. In a matter like this where allegations of rape pertain to the period
which is almost 17 years ago and when no charge was framed
under Section 376 IPC in the year 2001, and even the prosecutrix
did not take any steps for almost 9 years and the charge under
Section 376 IPC is added only in the year 2014, we see 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 High Court has remarked that the complainant had to run a
marathon for getting her complaint registered as an FIR and more
particularly for addition of charge under Section 376 IPC. In view
of what we have mentioned above, these observations are not
correct. Further, the High Court has also wrongly mentioned that
the Sessions Court has not assigned proper reasons for grant of
anticipatory bail. In fact, the reasons which have persuaded us
and recorded above, are precisely the reasons given by the
Sessions Court itself while granting anticipatory bail to the
appellant. The High Court has also wrongly observed that it is the
appellant who was able to drag the matter for a decade before the
complaint was registered under proper Sections. The record of
the case does not support this observation of the High Court. As
far as the discussion in the impugned order commenting upon the
conduct of the appellant in filing false complaints and cases
against the husband of the prosecutrix is concerned, we find that
the High Court has made contradictory remarks on this aspect. At
one place, such a move on the part of the appellant is
condemned as amounting to disturbing the witness and is treated
as tampering with evidence. However, at another place, the High
Court itself remarked that the complainant or the prosecutrix
cannot get the anticipatory bail cancelled on this basis and the
ground of misusing the order of bail after its grant is not made out.
As per the High Court, the order of grant of bail by the Session
Court itself was improper and that is the basis for cancelling the
order passed by the Session Court.
19. Before we proceed further, we would like to discuss the law
relating to grant of anticipatory bail as has been developed
through judicial interpretative process. A judgment which needs
to be pointed out is a Constitution Bench Judgment of this Court
in the case of Gurbaksh Singh Sibbia and Others v. State of
Punjab1
. The Constitution Bench in this case emphasized that
provision of anticipatory bail enshrined in Section 438 of the Code
is conceptualised under Article 21 of the Constitution which
relates to personal liberty. Therefore, such a provision calls for
liberal interpretation of Section 438 of the Code in light of Article
21 of the Constitution. The Code explains that an anticipatory bail
is a pre-arrest legal process which directs that if the person in
whose favour it is issued is thereafter arrested on the accusation
in respect of which the direction is issued, he shall be released on
bail. The distinction between an ordinary order of bail and an
order of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of the
1 (1980) 2 SCC 565
police, the latter is granted in anticipation of arrest and is
therefore, effective at the very moment of arrest. A direction
under Section 438 is therefore intended to confer conditional
immunity from the 'touch' or confinement contemplated by Section
46 of the Code. The essence of this provision is brought out in
the following manner:
“26. We find a great deal of substance in Mr
Tarkunde’s submission that since denial of bail
amounts to deprivation of personal liberty, the
court should lean against the imposition of
unnecessary restrictions on the scope of Section
438, especially when no such restrictions have
been imposed by the legislature in the terms of
that section. Section 438 is a procedural
provision which is concerned with the personal
liberty of the individual, who is entitled to the
benefit of the presumption of innocence since he
is not, on the date of his application for
anticipatory bail, convicted of the offence in
respect of which he seeks bail. An
over-generous infusion of constraints and
conditions which are not to be found in Section
438 can make its provisions constitutionally
vulnerable since the right to personal freedom
cannot be made to depend on compliance with
unreasonable restrictions. The beneficent
provision contained in Section 438 must be
saved, not jettisoned. No doubt can linger after
the decision in Maneka Gandhi v. Union of India,
(1978) 1 SCC 248, that in order to meet the
challenge of Article 21 of the Constitution, the
procedure established by law for depriving a
person of his liberty must be fair, just and
reasonable. Section 438, in the form in which it
is conceived by the legislature, is open to no
exception on the ground that it prescribes a
procedure which is unjust or unfair. We ought, at
all costs, to avoid throwing it open to a
Constitutional challenge by reading words in it
which are not to be found therein.”
20. Though the Court observed that the principles which govern the
grant of ordinary bail may not furnish an exact parallel to the right
to anticipatory bail, still such principles have to be kept in mind,
namely, the object of bail which is to secure the attendance of the
accused at the trial, and the proper test to be applied in the
solution of the question whether bail should be granted or refused
is whether it is probable that the party will appear to take his trial.
Otherwise, bail is not to be withheld as a punishment. The Court
has also to consider whether there is any possibility of the
accused tampering with evidence or influencing witnesses etc.
Once these tests are satisfied, bail should be granted to an
undertrial which is also important as viewed from another angle,
namely, an accused person who enjoys freedom is in a much
better position to look after his case and to properly defend
himself than if he were in custody. Thus, grant or non-grant of
bail depends upon a variety of circumstances and the cumulative
effect thereof enters into judicial verdict. The Court stresses that
any single circumstance cannot be treated as of universal validity
or as necessarily justifying the grant or refusal of bail. After
clarifying this position, the Court discussed the inferences of
anticipatory bail in the following manner:
“31. In regard to anticipatory bail, if the
proposed accusation appears to stem not from
motives of furthering the ends of justice but from
some ulterior motive, the object being to injure
and humiliate the applicant by having him
arrested, a direction for the release of the
applicant on bail in the event of his arrest would
generally be made. On the other hand, if it
appears likely, considering the antecedents of
the applicant, that taking advantage of the order
of anticipatory bail he will flee from justice, such
an order would not be made. But the converse of
these propositions is not necessarily true. That is
to say, it cannot be laid down as an inexorable
rule that anticipatory bail cannot be granted
unless the proposed accusation appears to be
actuated by mala fides; and, equally, that
anticipatory bail must be granted if there is no
fear that the applicant will abscond. There are
several other considerations, too numerous to
enumerate, the combined effect of which must
weigh with the court while granting or rejecting
anticipatory bail. The nature and seriousness of
the proposed charges, the context of the events
likely to lead to the making of the charges, a
reasonable possibility of the applicant’s presence
not being secured at the trial, a reasonable
apprehension that witnesses will be tampered
with and “the larger interests of the public or the
State” are some of the considerations which the
court has to keep in mind while deciding an
application for anticipatory bail. The relevance of
these considerations was pointed out in The
State v. Captain Jagjit Singh, AIR 1962 SC 253 :
(1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which,
though, was a case under the old Section 498
which corresponds to the present Section 439 of
the Code. It is of paramount consideration to
remember that the freedom of the individual is as
necessary for the survival of the society as it is
for the egoistic purposes of the individual. A
person seeking anticipatory bail is still a free
man entitled to the presumption of innocence.
He is willing to submit to restraints on his
freedom, by the acceptance of conditions which
the court may think fit to impose, in consideration
of the assurance that if arrested, he shall be
enlarged on bail.”
21. It is pertinent to note that while interpreting the expression “may, if
it thinks fit” occurring in Section 438(1) of the Code, the Court
pointed out that it 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 Court also
remarked that a wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of its
intemperate use.
22. Another case to which we would like to refer is the judgment of a
Division Bench of this Court in the case of Siddharam
Satlingappa Mhetre v. State of Maharashtra and Others2
. This
case lays down an exhaustive commentary of Section 438 of the
Code covering, in an erudite fashion, almost all the aspects and in
the process relies upon the aforesaid Constitution Bench
2 (2011) 1 SCC 694
judgment in Gurbaksh Singh's case. In the very first para, the
Court highlighted the conflicting interests which are to be
balanced while taking a decision as to whether bail is to be
granted or not, as is clear from the following observations:
“1. Leave granted. This appeal involves issues
of great public importance pertaining to the
importance of individual's personal liberty and
the society's interest. Society has a vital interest
in grant or refusal of bail because every criminal
offence is the offence against the State. The
order granting or refusing bail must reflect
perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the
interest of the society. The law of bails dovetails
two conflicting interests, namely, on the one
hand, the requirements of shielding society from
the hazards of those committing crimes and
potentiality of repeating the same crime while on
bail and on the other hand, absolute adherence
to the fundamental principle of criminal
jurisprudence regarding presumption of
innocence of an accused until he is found guilty
and the sanctity of individual liberty.”
23. The principles which can be culled out, for the purposes of the
instant case, can be stated as under:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) We shall also reproduce para 112 of the judgment wherein the
Court delineated the following 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 overimplication 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.
24. Having regard to the facts of this case which have already been
highlighted above, we feel that no purpose would be served in
compelling the appellant to go behind bars, as an undertrial, by
refusing the anticipatory bail in respect of alleged incident which
is 17 years old and for which the charge is framed only in the year
2014. The investigation is complete and there is no allegation
that the appellant may flee the course of justice. 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
is no allegation that during this period he had tried to influence the
witnesses. In the aforesaid circumstances, even when there is 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 other factors enumerated above.
25. The prosecutrix has moved an application in these proceedings
for perusing new evidence on the basis of which she claims that
the appellant has committed breach of conditions of anticipatory
bail and regular bail. It is not necessary for us to go into the
allegations made in this application. She would be at liberty to
make such an application before the trial court for cancellation of
bail. We may clarify that we have not gone through the merits of
this application, and as and when such an application is made,
the trial court would be free to examine the same and pass the
order as the trial court deems fit in accordance with law.
26. Before we part, in order to balance the equities, we are of the
view that the trial in this case may be expeditiously conducted
and the trial court should endeavour to complete the same within
one year.
27. As a result, we set aside the impugned judgment and restore the
order dated 18.05.2013 of the learned Additional Sessions Judge
granting anticipatory bail to the appellant on the conditions
mentioned in the said order. Appeals are allowed in the aforesaid
terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ROHINTON FALI NARIMAN)
NEW DELHI;
SEPTEMBER 01, 2015.

Print Page

No comments:

Post a Comment