Anticipatory bail can continue till end of trial, rules SC

Satya Prakash

Tribune News Service

New Delhi, January 29

An anticipatory bail given to an accused in a criminal case can continue after the filing of the charge sheet till end of trial, the Supreme Court ruled on Wednesday.

“The protection granted to a person under Section 438 CrPC (Criminal Procedure Code) should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time,” a five-judge Constitution Bench headed by Justice Arun Mishra said.

“It is held 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. Again, 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 top court said.

The Bench, however, made it clear that an order of anticipatory bail should not be “blanket” and it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. “It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence,” it added.

“An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-­arrest bail,” said the Bench which also included Justice Indira Banerjee, Justice Vineet Sharan, Justice MR Shah and Justice S Ravindra Bhat.

While decided anticipatory bail pleas, courts needed to consider the gravity of the offence, role of the accused, likelihood of his influencing the probe or tampering with evidence, intimidating witnesses, likelihood of fleeing justice, it said.

The Bench, however, made it clear that an order of anticipatory bail should not be “blanket” and it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest

The Bench was referred two issued for adjudication — whether the protection granted to a person under Section 438 the Criminal Procedure Code should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail; and whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

Earlier, various Benches of varying strength of the Supreme Court had delivered conflicting views on the two issues.

The Bench said an application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story.

“These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest,” it clarified.

“The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances,” the top court said.