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Grounds for granting Anticipatory Bail and it's Rejection

Grounds for granting Anticipatory Bail:

  • Cases involving non-bailable offence, on apprehension of arrest, even after filing of chargesheet and issuing of warrant[1] AB can be granted.
  • Long delay in lodging FIR - valid consideration for grant of AB[2].+
  • Any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail[3].
  • Where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail that such power is to be exercised[4].

Grounds for rejection of Anticipatory Bail:

  • In Economic offences, the accused is not entitled to anticipatory bail[5].
  • Granting bail to other accused is not a ground to grant AB to an absconding accused[6].
  • When the accused is absconding and declared as a proclaimed offender[7].
  • No blanket AB for offences not yet committed or with regard to accusations not yet leveled so far[8]
  • Where a legitimate case for the remand of the offender to the police custody under Section 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised[9].
  • The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless[10]
  • The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised[11].
  • If it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made[12].
  • Normally a second application for the same relief will not be entertained unless there is some change of circumstances or other grounds exist which would justify the consideration of second application[13]
The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the state are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

Points to remember while granting AB:
  • For grant of bail under the PMLA Act - S. 45 - The court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence on bail.
  • The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy[14].
  • A delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest[15].

Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors, 2010

Scope And Ambit Of Anticipatory Bail:

This Court In The Sibbia's Case (Supra) Laid Down The Following Principles With Regard To Anticipatory Bail:
  1. Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
  2. Filing of FIR is not a condition precedent to exercise of power under section 438.
  3. Order under section 438 would not affect the right of police to conduct investigation.
  4. Conditions mentioned in section 437 cannot be read into section 438.
  5. Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.
  6. Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Factors And Parameters That Can Be Taken Into Consideration While Dealing With The Anticipatory Bail:

  1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
  2. 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;
  3. The possibility of the applicant to flee from justice;
  4. The possibility of the accused's likelihood to repeat similar or the other offences.
  5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
  6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
  7. 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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
  8. 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
  9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  10. 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.
  1. Natturasu and Others v. State by SI of Police, Mannirpallam Police Station, 1998 (1) MWN (cr) 102
  2. Sumedh Singh Saini v. State of Punjab and Another, 2020
  3. S. 437 CrPC
  4. Balchand Jain v. State of Madhya Pradesh; Gurbaksh Singh Sibbia and Others v. State of Punjab, 1980
  5. Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105; P. Chidambaram v. Directorate of Enforcement, 2019
  6. Director of Enforcement and Another v. P.V. Prabhakar Rao, 1997
  7. State of MP v. Pradeed Sharma, 2013
  8. Gurbaksh Singh Sibbia and Others v. State of Punjab, 1980
  9. Supra
  10. Gurbaksh Singh Sibbia and Others v. State of Punjab, 1980
  11. Gurbaksh Singh Sibbia and Others v. State of Punjab, 1980
  12. Gurbaksh Singh Sibbia and Others v. State of Punjab, 1980
  13. Raju C.D. v. State of Kerala, 2010
  14. P. Chidambaram v. Directorate of Enforcement, 2019
  15. Supra

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