January 30, 2020 3:05:13 am
The Supreme Court ruled Wednesday that no time restriction should ordinarily be fixed for anticipatory bail and that it can continue even until the end of the trial.
The protection granted under Section 438 CrPc (anticipatory bail) “should not invariably be limited to a fixed period”, a five-judge Constitution bench headed by Justice Arun Mishra said, deciding a reference made to it following “conflicting views” of some other benches of the court.
The bench, also comprising Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat, added that “the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial”.
“Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial,” it added.
The judgment, however, clarified that it will be open for the competent court to impose conditions. It said that “if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”
The court which went into the law on the subject said that “Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till chargesheet is filed, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years”.
It also laid down certain factors the court should keep in mind while deciding an application for anticipatory bail. The application, it said “should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence”.
It can be moved even before an FIR is filed “so long as the facts are clear and there is reasonable basis for apprehending arrest”, it said.
The court may issue notice to the public prosecutor and obtain facts even while granting limited interim anticipatory bail.
The court “has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc”, the judgment pointed out.
Leaving it open to the courts to impose conditions, the Supreme Court said this will have to be decided on a case-by-case basis “and depending upon the materials produced by the state or the investigating agency”.
The SC also said that an order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest.
It will also be open to the investigating agency to move the concerned court “to arrest the accused, in the event of violation of any term, such as absconding, non-cooperation during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial.”
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