Grant or refusal of anticipatory bail–
The Code of Criminal Procedure, 1898, at its initiation had no specific provision of anticipatory bail. In 1978, by the Law Reforms Ordinance provision was incorporated for direction to grant of bail to person apprehending arrest, by inserting Section 497A in the Code of Criminal Procedure.
Provision was omitted from the Code by the Code of Criminal Procedure (Amendment) Ordinance, 1982 (Ordinance No.IX of 1982). Relevant provision of the said Ordinance runs as follows:-
“2. Omission of section 497A, Act, V of 1978; In the Code of Criminal Procedure, 1898 ( Act V of 1898) , herein referred to as the said Code section 497A shall be omitted.”
The case of the State Vs. Md. Monirul Islam @ Nirob and others reported in 16 BLC (AD) page 53. (judgment was delivered by A.B.M. Khairul Haque, C.J.) In that case it was observed ,
“We have gone through the Order dated 08.06.2010 passed by the learned Judges of the High Court Division. The Order granting the ad interim anticipatory bail is absolutely mechanical and does not give any reason for giving such an exceptional relief. This kind of blanket order allowing anticipatory bail should not be passed. True it is, that it is an ad interim bail but it is still a bail. As such, the learned judges ought to be satisfied before allowing anticipatory bail, ad interim or otherwise as under:
i) The allegation is vague,
ii) No material is on record to substantiate the allegations,
iii) There is no reasonable apprehension that the witnesses may be tampered with,
iv) The apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record,
v) Must satisfy the criteria for granting bail under section 497 of the Code,
vi) The allegations are made for collateral purpose but not for securing justice for the victim.
vii) There is a compelling circumstance for granting such bail,
the case of Durnity Daman Commission and another Vs. Dr. Khandaker Mosharraf Hossain and another reported in 66DLR(AD) 92 (judgment was delivered by A.H.M. Shamsuddin Choudhury.J) has observed as under:
“A metaphorical avowal that the Magistracy/lower judiciary is controlled by the executive should not be treated as specific because Magistrates/lower court/tribunal Judges do no longer dwel in the realm governed by the executive. If allegation of bias is aired against a particular or a group of Magistrates/Judges, cause of suspicion must be specifically spelt out. The Judges concerned, shall give reasons for their satisfaction on this unraveling point
(b) Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application.
(c) Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division’s intervention for even the Magistrates/lower court/tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases.
(d) Effect of the accused’s freedom on the investigation process must not be allowed to float on obfuscation.
(f) The High Court Division must scrutinize the text in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51DLR(AD), 242. Claim that the allegations are cooked up shall also not be adjudged at that of point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are framed or genuine can only be determined through investigation and sifting of evidence.
(g) Interest of the victim in particular and the society at large must be taken into account in weighing respective rights.
(h) If satisfied in all respect, the High Court Division shall dispose of the application instantaneously by enlarging the accused a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division’s anticipatory bail order. Anticipatory bails shall not survive post charge-sheet stage.”
The case of State Vs. Mirza Abbas and others reported in 67 DLR (AD)182, this Division again observed,
“Such discretion has to be exercised with due care and circumspection depending on circumstances justifying its exercise.No blanket order of bail should be passed. Such power of the High Court Division is not unguided or uncontrolled and should be exercised in exceptional case only. Court must apply its own mind to the question and decide whether a case has been made out for granting such relief. Court must not only view the rights of the accused but also the rights of the victims of the crime and the society at large while considering the prayers. An overgenerous infusion of constrains and conditions are not available in the guidelines indicated by this Division.”
The case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in (2011) 1 SCC 694, Indian Supreme Court has observed that,
“The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(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 of flee from justice;
(iv) The possibility of the accused’s likelihood to repeat similar or 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 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;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be cause 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.”
Guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide right and inflexible guidelines in this respect because all circumstances and situations of future can not be clearly visualised for the grant or refusal of anticipatory bail. Few principles for grant of anticipatory bail can be summarised as follows:
(i) The F.I.R. lodged against the accused needs to be thoroughly and carefully examined;
(ii) The gravity of the allegation and the exact role of the accused must be properly comprehended;
(iii) The danger of the accused absconding if anticipatory bail is granted;
(iv) The character, behaviour, means, position and standing of the accused;
(v) Whether accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is to be remembered that a worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community;
(vi) A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and thorough investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(vii) The anticipatory bail being an extra ordinary privilege, should be granted only in exceptional cases. Such extraordinary judicial discretion conferred upon the Higher Court has to be properly exercised after proper application of mind to decide whether it is a fit case for granting anticipatory bail not according to whim, caprice or fancy;
(viii) A condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence;
(ix) The apprehension that the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail.
(x) In the cases involve grave offence like murder, dacoity, robbery, rape etc. where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims the accused should never be enlarged on anticipatory bail. Such discretion should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise.
(xi) It is to be borne in mind about the legislative intention for the purpose of granting anticipatory bail because legislature has omitted the provision of Section 497A from the Code.
(xii) It would be improper exercise of such extraordinary judicial discretion if an accused is enlarged on anticipatory for a indefinite period which may cause interruption on the way of holding thorough and smooth investigation of the offence committed.
(xiii) The Court must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime.
(xiv) While enlarging an accused on anticipatory bail, the Court must direct the applicant to co-operate with the investigating officer in every steps of holding proper investigation if the same is needed.
(xv) The anticipatory bail granted by the Court should ordinary be continued not more than 8(eight)weeks and shall not continue after submission of charge sheet, and the same must be in connection with non-bailable offence.
(xvi) The Court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the State or complainant.
The indicatives of this Division given in the case of State V. Abdul Wahab Shah Chowdhury that “such extraordinary remedy, and exception to the general law of bail should be granted only in extra-ordinary and exceptional circumstances upon a proper and intelligent exercise of discretion” should be followed strictly. …The State =VS= Morshed Hasan Khan(Professor Dr.), (Criminal), 2019 (2) [7 LM (AD) 292] ....View Full Judgment