SUPREME COURT ON LAW OF BAILS

Transcription

1 CHAPTER-IV SUPREME COURT ON LAW OF BAILS It is general judicial experience that in matters of law involving questions of construing statutory or Constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When Supreme Court rears appeals against decision of High Courts and is required to consider that propriety or correctness of view taken by the High Courts on any law, it would be open to Supreme Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case the choice is between the view taken by the High Courts whose judgment is under appeal and alternative view which appears to this court to be more reasonable and in accepting its own view in preference to that of the High Court, Supreme Court would be discharging its duty as court of appeal. It is just not dominating as the Apex Court, but it only decides a case on question of law and when it decides a case under question of law, its decisions are under Article 141, binding on all courts within the territory of India and so, it must be the 135

2 constant endeavour and concern of Supreme Court to introduce and maintain on element of certainty and continuity in the interpretation of law in the country. Especially, when a matter of bail applications comes, it is only the Magistrate or Sessions Court or High Court in which power is imposed to grant it. But, if the accused feels that, even by apprehending to the High Court his bail application is rejected on considering no grounds or nonperusal of grounds to be considered for granting bail to him then in such a case, the accused approaches the Hon ble Supreme Court on pointing the High Courts decision and Apex Court can reverse the decision of High Court which will obviously become binding on all the courts in India. The Hon ble Supreme Court can review its own decision. If it is found by the Supreme Court that its previous decision is erroneous, for the public good the Hon ble Court can review and change its own decisions. Thus, in this chapter as the name itself reveals The Supreme Court on Law of Bails various decisions of Supreme Court are being discussed in the following on law relating to bails. One of the salutary principles in granting bail is that the Court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. When allegations of tampering of 136

3 evidence are made, it is the duty of the Court to satisfy itself whether those allegations have basis (they can seldom be proved by concrete evidence), and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail. In the instant case, there were serious allegations but the learned Judge did not either consider or test the same. Order granting bail by the High Court was set aside held in - Shahzad Hasan Khan vs Ishtiaq Hasan Khan.1 Considerations in granting bail which are common both in the case of Ss.437(l) and 439(1), Cr.P.Code are: (i) the nature and gravity of the circumstances in which the offence is committed; (ii) the position and the status of the accused with reference to the victim and the witnesses; (iii) the likelihood of the accused fleeing from justice; (iv) of repeating the offence; (v) of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; (vi) of tampering with witnesses; (vii) the history of the case as well as of its investigation; and (viii) other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out was held in Gurcharan Singh vs. State (Delhi Administration2 AIR 1987 SC 1613; 1987 SCC (Cr) 415. AIR 1978 SC 179; 1978 SCC (Cr)

4 In Gudikanti Narasimhulu vs. Public Prosecutor of Andhra Pradesh3 some other considerations are taken while granting bail. They are: (a) The nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. (b) As to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus, the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. AIR 1978 SC

5 Bail discretion, on the basis of evidence about the criminal record of a defendant is, therefore, not an exercise in irrelevance. (c) That deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected. (d) It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted* mechanical detention should be demoted. (e) Bad records and Police prediction of criminal prospects to invalidate the bail plea are admissible in principle, but shall not stampede the Court into a complacent refusal. (f) The period in prison already spent and the prospect of the appeal being delayed for hearing. (g) The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions. (h) Heavy bail from poor men is obviously wrong. The Supreme Court is not inclined to interfere with the orders either granting or refusing to grant bail to an accused person, either facing 139

6 a criminal trial or whose case after conviction is pending in appeal. However, this is not a case where bail is granted or refused but the order granting the bail by the learned Sessions Judge was set aside by the High Court adopting an approach which does not commend to the Hon ble Judges. The learned Judge of the High Court has misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judges of the High Court, that in the circumstances found by him that the victim attacked was a social and political worker and, therefore, the accused should not be granted bail, but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail was held in Bhagirathsinh Judeja vs. State of Gujarat.4 The Court before granting bail in cases involving non-bailable offences particularly where the trail has not yet commenced should take 4 AIR 1984 SC 372; 1984 SCC (Cr)

7 into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused no being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations. As per the facts of the case, it appears that a prima facie case is made out against the respondent. The gravity of the offences is quite obvious. They relate to the security of the State. Espionage and intelligence are utilized to pass on information regarding military plans, equipment, technical advances, etc. of one country to another. Naturally passing on of such information from our country to a foreign country is bound to be most harmful to our country. The person accused along with the respondent are admittedly ex-military men well versed in military affairs who are capable of establishing bridges with the sensitive sections of the defence services. The respondent is also alleged to be having some dealings with the defence department and Jasbir Singh is in the employment of the respondent. The allegations made by the prosecution which no doubt have still to be established at the trial, suggest that the respondent and the persons accused along with him are persons of easy conscience, in so far as the interests and security of the country are concerned. The current situation in the country is such that it can easily be exploited by 141

8 unscrupulous men to their own or to some foreign power s advantage. These aspects of the case do not appear to have been considered by the High Court. The High Court s decision that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be a premature one in the circumstances of this case, since the trial is yet to begin. Bail granted by the High Court was cancelled in State (through Deputy Commissioner of Police Special Branch, Delhi) vs. Jaspal Singh Gill5 In Jagdish vs. Harindrajit Singh,6 it was held that the Supreme Court does not ordinarily, in the exercise of its discretion under Article 136, entertain petitions for special leave to appeal against orders granting, or refusing, or canceling bail or anticipatory bail. These are matters where the High Court should become final and the Supreme Court should not entertain petitions for special leave. In Chandra Swami and another vs. Central Bureau of Investigation7 held that Section 437(1) provides that when any person accused of, or suspected of, the Commission of any non-bailable offence is brought before a Court, he may be released on bail unless his case falls in clauses (i) or (ii) thereof. The present case is not covered by the said two clauses. Therefore, ordinarily, a person who is suspected of having 5 AIR 1984 SC 1503; 1984 Cri.LJ SCC (Cr) 1; (1985) 4 SCC (1) ALD (Crl) 188 (SC). 142

9 committed an offence under Section 120B read with Section 420 I.P.C. would be entitled to bail; of course the paramount consideration would always be to ensure that the enlargement of such persons on bail will not jeopardize the prosecution case. Any such likelihood is not shown by the learned Additional Solicitor General. Moreover, the learned counsel for the C.B.I. had admitted before the High Court that there was nothing to indicate any attempt of tampering by the accused in India or abroad during the long period available to them earlier. There is no reasonable basis for such an apprehension now at this stage and in the existing circumstances. o In Bharat Chandra and another vs. State of Bihar and another it was held that, from the perusal of Section 438 of the Cr.P.C.,'we find no restriction with regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by. pre-trial arrest and dete4ntion. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail also the (2) ALD (Crl) 976 (SC). 143

10 need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of andcipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail The Courts i.e., the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Cr.P.C. even when cognizance is taken or charge-sheet is filed provided the fats of the case require the Court to do so. The provisions of Criminal Procedure Code confer discretionary jurisdiction on Criminal Courts to grant bails to accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction has not to be exercised in a casual and cavalier fashion was held in Mansctb Ali vs. Irfan9 There is no bar in filing an application under S.438 after the filing of the charge-sheet or after the issuance of a process under S. 204 of the Code or after the issue of warrant of arrest in a complaint case. Such an Cri.LJ. 871, AIR 2003 SC. 144

11 application is maintainable at post cognizance stage of a case instituted on police report or complaint after the Court issues process like warrant of arrest fof production of having committed a non-bailable offence. Section 438(1) authorizes the High Court or the Court of Session to pass an order of release on bail when there is apprehension of arrest on an accusation of having committed a non-bailable offence. If after taking into consideration the materials placed before the High Court or before the Court of Session, a direction is issued under sub-sec.(l), conditions can be imposed in respect of the bail bond. Sub-sec. (3) has indicated that if a person is arrested after an order under sub-sec. (1) is passed in respect of the self-same accusation and prepared to give bail as indicated in such order of sub-sec. (1), he shall be released on bail. The second part of sub-sec. (3) further clarifies that if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-sec. (1). There is nothing in sub-sec. (3) which prohibits the High Court or the Court of Session or the arresting officer or the Magistrate taking cognizance limiting the scope and ambit of S The sub-sec. (3) of S. 438 is merely a guideline as regards action to be taken by the arresting officer or the Magistrate in respect of an order passed under sub-sec. (1). So it cannot be said that in view of the sub-sec. (3), it is required to be concluded that an application 145

12 under S. 438 is not maintainable. In view of S. 438 (2)(iv) is within the competence of the High Court or the Court of Session while passing an order under S. 438 to impose such other condition as may be imposed under S. 437(3) of the Code as if the bail were granted under that section. Under S. 437(3) a condition can be imposed in order to ensure that the applicant shall attend in accordance with the conditions of the bond executed under Chap. 33. Thus, inclusion of a condition to meet the investigating officer or to attend the Court in the order under S. 438 is permissible in law. So even after the filing of the charge-sheet or after the issuance of process under S. 204 of the Code if an application under S. 438 is allowed, the High Court or the Court of Session is competent to impose appropriate condition for ensuring the attendance of the applicant before the lawful authority or the Court. In fact, arrest is not ruled out even after passing of an order under S There is nothing in S. 438 indicating the time when an application under that section is to be presented. It has also not prohibited the filing of an application even after filing of the charge-sheet or after the process is issued under S. 204 after 'taking of cognizance in a case. At the same time sub-sec. (3) of S. 438 has elucidated the actions required to be taken by the arresting officer or the Magistrate taking cognizance in an offence in respect of a person who has already obtained an order under S 438(1) of the Code. Further S. 70(2) of file Code is also sufficient to indicate that as soon as the person 146

13 against whom a warrant of arrest has been issued is arrested, it comes to an end, meaning that the warrant of arrest has been executed. So after arresting a person if it is detected that there is an order under S. 438, the arresting officer can proceed in accordance with sub-sec. (3) of S. 438 immediately after the execution of the warrant of arrest. Hence it cannot be said that the provisions of S. 70 or the other provisions of Chap. 6 or S. 209 of the Code prohibit entertainment of an application under S. 438 of the Code after the charge-sheet is filed or the process is issued under S. 204 or under S. 209 was held in Shamim Ahmed vs. State10 In another case the Court held that - The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of chargesheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. The Courts i.e. the Court of Sessions, High Court or Cri.L.J (Cal) FB. 147

14 the Supreme Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under S. 438 of the Cr.P.C. even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so. Salauddin A. Shaik vs. State.11 It is settled law that in granting or non-granting of bail in non- bailable offence, the primary consideration is the nature and gravity of the offences. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial was held in Satish Jaggi vs. 1 5 State of Chattisgarh and others i 5 In Bhuvaneshwar Yadav vs. State of Bihar held that it is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: (a) The nature of accusation and the severity of punishment n CriLJ 1368; 1996 AIR SCC ALT (Crol.) 438 (SC) AIR (SC)

15 in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of * * threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. Any order de hors of such reasons suffers from non-application of mind. The position is not different when the application is made during pendency of an appeal after conviction has been recorded. The satisfaction about guilty of the accused has been arrived at while recording conviction. Though an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order no such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by the Supreme Court and subsequently when the High Court did grant bail, the Supreme Court cancelled the said bail by a reasoned order. The impugned order indicate any of the fact that the High Court took note of the grounds which persuaded the Supreme Court to cancel the bail on earlier occasions. 149

16 Such approach of the High Court would be violative of the principle of binding nature of judgments of superior Court rendered in a list between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding characters. It was held in Kalyan Chandra Sekhar vs. Rajesh Ranjan alias Pappu Yadav14 The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter 33 of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the Court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. Having granted the bail under the said provision of law, it is not open to the trial Court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law was held in Biman Chatterjee vs. Sanchita Chatterjee15 Once the Court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail then no condition other than those enumerated in S. 437(3) or 438(2) can be imposed. Imposition of such a condition is not only beyond the Cri.L.J (D); AIR 2004 SC Cri.LJ. 1451; AIR 2004 SC

17 purview of the provisions of Cr.P.C. but also beyond the powers of the Court. Discretion does not mean that it has arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness. The impugned order granting bail subject to the condition directing petitioner to furnish bank guarantee of Rs.10 laksh is not sustainable in the eyes of law and has to go to the extent of imposition of a condition of furnishing a bank guarantee. If the trial Court was so doubtful or uncertain about the attendance of the petitioner it was well within its jurisdiction to refiist the bail, Vipin Mehra vs. State16 Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications. Yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with Cri.L.J. (Noc) 41 (Delhi). 151

18 application for bail to consider among other circumstances, the following factors also before granting bail, they are: (1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (2) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (3) Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non-application of mind. Above being the position, the cryptic non-reasoned order of the High Court granting bail to the accused, is clearly indefensible was held in Chamanlal vs. State of U.P.17 When a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. In the present case an affidavit of Police Inspector was filed which indicated the threat given to the complainant in the Court premises by appellant. Merely because in the evidence recorded there is no reference to the threat, that does not go to prove the negative or sufficient to infer that there was no such threat. In the affidavit it has been clearly mentioned that a case was registered under S. 188, IPC in relation to the threat and as there were allegations prima facie showing that the 17 AIR 2004 SC 4267; 2004 CriLJ

19 witnesses have been threatened a ground for cancellation of bail did exist. 18 Mehaboob Dawood Shaikvs. State of Maharashtra In Adri Dharan Das vs. State of West Bengal19 it was held by the Hon ble Supreme Court that - the power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e., the Court of Sessions or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. It was also held in the above same case that an application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the4 Code CriLJ 1359(A); 2004 AIR SCW 527/ (2) ALD (Crl.) 67 (SC); AIR 2005 SC

20 In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is wel-defined and the jurisdiction scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the arrest of accused in a cognizable 154

21 offence. An interim order restraining arrests, if passed while dealing with an application under Section 438, of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has reason to believe, that he may be arrested in a non-bailable offence. Use of the expression reason to believe that he may be arrested in a non-bailable offence. Use of the expression reason to believe shows that the applicant may be arrested must be founded on reasonable grounds. Mere fear is not belief for which reason it is not enough for the applicant to show that he has some sort of va t.e apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for he Court concerned to decide whether a case has been out for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from they very language of the 155

22 section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something triangle to go by on the basis of which it can be said that the applicant s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail whenever arrested for whichever offence whatsoever. Such blanket order should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual s liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background or legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed. The Hon ble Supreme Court in this case held that - the order of the Sessions Court shows that the learned Magistrate has been empowered to consider the question of violation of any of the conditions imposed by the Sessions Court and was given powers to pass appropriate orders. The contention that when the Magistrate had no such power, the Sessions Court was not empowered to invest that power in this contention, is not acceptable. The superior Court can always give directions of this nature and authorize the subordinate Court to pass appropriate orders and the 156

23 trial Magistrate would be the competent authority to decide whether any condition had been violated by the person who had been released on bail. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legal and valid. The contention of learned Counsel for the appellant that the appellant was in prison in connection with another case and that is why he could not appear before the Investigation Officer, does not appear to be true as such a plea was not raised before the learned Magistrate. The learned Counsel for the appellant only contended before the learned Magistrate that he apprehended assault at the hands of the police and, i therefore, ne refrained from making himself available before the investigating officer. The learned Magistrate rightly rejected this plea. The Order passed by the learned Magistrate was correct and the High Court has rightly rejected the Revision filed by the appellant. P.K. Thammanam Shaji vs. State of Kerala20 An elaborate discussion was made in this case about Anticipatory Bail, it is that - the power of granting anticipatory bail is extraordinary in character and only in exceptional cases where it appears that a person is falsely implicated or a frivolous case is launched against him or there are reasonable grounds for holding that a person accused of an offence is not (2) ALD (Crl.) 955(SC). 157

24 likely to abscond, or otherwise misuse his.liberty while on bail that such power may be exercised. Thus, the power is unusual in nature and is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and a High Court. Keeping in view the reports of the Law Commission, Section 438 was inserted in the present Code. Sub-section(l) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Subsection (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub-Section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail. Discretionary power conferred by the Legislature on higher Judiciary cannot be put in a straight-jacket formula. Such power must be exercised by the Court keeping in view facts and circumstances of an individual case. In (1980) 2 SCC 565, the Court also held before power under sub-section (1) of Section 438 is exercised, the Court must be satisfied that the applicant invoking the provision of anticipatory bail has reason to believe that he is likely to be arrested for a non-cognizable 158

25 offence. The High Court or the Court of Session must apply its own mind to the question and decide whether a case has been made out for grant of such relief. If condition, precedent laid down in sub-section (1) of Section 438 is not satisfied and there is no reason to believe that the applicant is likely to be arrested for commission of a non-bailable offence, the Court has no power to grant anticipatory bail. The Court also stated that apart from the language of the statute, there is an important i principle involved in the insistence of the fact that the direction under Section 438(1) must be clear and specific and not vague and general. The Court clearly laid down that no blanket order of bail can be passed by a Court while exercising power under Section 438 of the Code. In (2005) 4 SCC 303, referring to (1980) 2 SCC 565, the Court observed that normally, no direction should be issued to the effect that the applicant should be released on bail whenever arrested for whichever offence whatsoever. Such order should not be passed as it would serve as a blanket to cover or protect any and every kind allegedly unlawful activity. An order under Section 438 is a device to secure the individual s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. Union of India vs. Padam Narain Aggarwal etc (2) ALD Crl. 945 (SC); 2008 (7) Supreme

26 In the following case the High Court lost sight of the fact that it was not dealing with any appeal on merits. It was considering bail application. Even otherwise several irrelevant aspects have been taken into consideration and this Court s view regarding use of non-genuine documents by respondent Sunil have been lightly brushed aside. Curiously, the High Court has treated the documents which were treated non-genuine by this Court to be minor circumstances. It is also pointed out that factually certain conclusions, recorded are contrary to the evidence on record. Merely because the relatives of the deceased spoke out. about the dowry demand that cannot be a ground to come to the conclusion that the allegations relating to dowry demand are prima facie untenable and prima facie throws doubt about the alleged torture. Merely because the doctor who conducted the post-mortem examination has not been examined by the investigating agency and statement has not been recorded under Section 161 of the Cr.P.C., that cannot be a ground to grant bail to the accused persons. The reasoning given by the High Court that only. "the family members earlier did not lodge reports and, therefore, prima facie throws doubt about alleged torture, is another conclusion which has not required to be given while dealing with the bail application. The High Court was factually wrong in saying that the persons of the locality had not alleged regarding torture meted out on account of dowry. Even otherwise merely 160

27 because the family members of the deceased spoke about the alleged dowry demand and not others that cannot be certainly a ground to conclude that same throws doubt on the alleged torture. The High Court was also not correct in saying that there was no likelihood of the accused persons absconding in view of what has been pointed out by learned Counsel for the appellant about his not surrendering requiring issuance notice in terms of Sections 82 and 83 of the Code. The High Court has virtually written an order of acquittal by commenting on the evidentiary value of evidence on record. This is impermissible. Only broad features of the case are to be noted. Elaborate analysis of the evidence is to be avoided. Looked from any angle the impugned orders of the High Court are indefensible and are set aside. The appeal is allowed by the Supreme Court. Gajanand Agarwal vs. State of Orissa and other 2007.(2) (Crl.) 284 (SC; 2007 AIR SCW