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:
(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.
Criminal Appeal No. 11340 of 2015