Allahabad High Court
Ankur Mishra [Anticipatory Bail ... vs State Of U.P. & 2 Ors. on 1 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1711
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 AFR Case :- BAIL No. - 8300 of 2019 Applicant :- Ankur Mishra [Anticipatory Bail Cancellation] Opposite Party :- State of U.P. & 2 Ors. Counsel for Applicant :- Sushil Kumar Singh Counsel for Opposite Party :- G.A.,Jayshanker Shukla,Laltaprasad Misra Hon'ble Dinesh Kumar Singh,J.
1. This application has been filed for cancellation of anticipatory bail granted under Section 438 Cr.P.C. to accused-respondent no.3 (herein after referred to as 'respondent no.3') in F.I.R. No.1194 of 2018 registered under Section 304A IPC, however, later on converted under Sections 304 and 201 IPC, Police Station Chinhat, District Lucknow.
2. Allegations in the F.I.R. are that the complainant along with his family on 21.12.2018 at around 8.30 PM went to attend the birthday party of daughter of one of relatives at Hotel Grand Orion, in front of the High Court building, Faizabad Road, Lucknow. The party was organised on the third floor of the hotel. However, the railing of the balcony was not properly fixed and it was just put up by the side of the wall. The 11 years old son of the complainant as soon as went near the railing and touched it, he fell down along with railing on the ground. The son of the complainant was taken to the Lohiya Hospital, Lucknow. However, he was declared brought dead by the doctors. It was alleged that without ensuring the safety of the guests coming to the hotel and in gross negligence, without taking due care to the lives and safety of the guests, the party was organised on third floor by the owner and the manager of the hotel and they played with the lives of guests.
3. On the basis of the aforesaid compliant of the father of the deceased, F.I.R. No.1194 of 2018 came to be registered on 22.12.2018 under Section 304A I.P.C. against the owner and the manager of the Hotel Grand Orion.
4. Despite the F.I.R., the accused were not arrested and, therefore, the complainant wrote to the Senior Superintendent of Police, Lucknow on 24.12.2018 and gave further information to be included in the investigation. It was said that after the incident, neither the management of the hotel rendered any assistance for taking the son of the complainant to the hospital nor information was given to the police nor ambulance was called for. The deceased was taken to the Lohiya Hospital in a private car by the complainant and other relatives, where he was declared brought dead.
5. It was further alleged that immediately after the incident, the workers of the hotel washed the blood at the place of the incident and they also removed the material of railing which fell down. During this period, two times the electricity of the hotel was disconnected by the hotel management for five minutes each.
6. It was also said that after receiving the information that son of the complainant had died, all the employees and management of the hotel fled away from the place of the incident of the hotel. The complainant further alleged that the hotel was illegally constructed and no inspection was made after it got constructed. There was no permission to run the hotel from the Lucknow Development Authority and, the Municipal Corporation, Lucknow and the hotel did not have any certificate from other relevant departments for running the hotel. The site plan of the hotel was not approved and the balcony was also not sanctioned. When the hotel was still under construction, it had been let out and the hotel was running without having got all the requirements completed without having completion certificate. It was said that the CCTV footage should be secured and incomplete hotel should be ordered to be closed down and, the owner and manager of the hotel, who were avoiding arrest, should be arrested.
7. The respondent no.3 instead of surrendering filed Writ Petition No.16 (MB) of 2019 before this Court seeking issuance of a writ in the nature of certiorari for quashing the F.I.R. No.1194 of 2018. It was contended that Section 304 I.P.C., in the facts and circumstances of the case, was not attracted inasmuch as the death of the son of the complainant was result of an accident. This Court dismissed the writ petition vide order dated 4.1.2019 with following observation :-
"We are dealing with a petition filed for issuance of a writ in the nature of certiorari for quashing the First Information Report. Prima facie it is evident that offence has been committed. Whether the offence is under Section 304-A Indian Penal Code is made out or Section 304 Indian Penal Code, is a matter to be considered at this stage by the Investigating Agency and at subsequent stage by the charge court.
We find no ground to quash the impugned First Information Report at this inceptive stage of investigation."
8. Despite dismissal of the writ petition, respondent no.3 and the manager of the hotel were not apprehended and, therefore, the Investigating Officer secured non-bailable warrants against them on 10.1.2019. However, despite securing the non-bailable warrants, the accused could not be arrested.
9. The complainant, in the back drop of the aforesaid facts, approached this Court by filing Writ petition No.3334 (MB) of 2019 with prayer for a writ in the nature of mandamus/direction for effective investigation in F.I.R. No.1194 of 2018 (supra). A Division Bench of this Court was of the opinion that the Magistrate having jurisdiction, is empowered to ensure fair and effective investigation as held by the Supreme Court in th case of Sakiri Vasu Vs.State of Uttar Pradesh and others, 2008 (2) SCC 409. The complainant was relegated to file an appropriate application before the Magistrate concerned in respect of his grievance. A detailed reference to the contents of the judgment rendered by the Supreme Court in Sakiri Vasu (supra) in paragraphs 14, 15, 17, 18, 24, 25, 27, 28, 29, 30 and 31 was made, so that the Magistrate was sinsitize/made aware of his powers and the onerous duty cast upon him to ensure fair and effective investigation. In the light of the aforesaid observation, the writ petition was disposed of finally vide order dated 5.2.2019.
10. The complainant, thereafter, moved an application on 16.2.2019 in the Court of Chief Judicial Magistrate, Lucknow for monitoring and ensuring the effective investigation of F.I.R. No.1194 of 2018 (supra). It was alleged that despite non-bailable warrants having been issued to the Investigating Officer on 10.1.2019, the accused were not arrested till the date of filing of the application. It was further said that in pursuance to the order passed by the Lucknow Development Authority on 26.12.2018, the Hotel Grand Orion was sealed on 28.12.2018 and the notice was pasted on the main entrance of the building. On the same day, Smt. Kiran Dubey, wife of respondent no.3 made a visit to the house of the applicant in the evening and on 29.12.2018 Sri Dev Mani Dubey, MLA of Lambhua Constituency visited the house of the applicant and intimidated him from pursuing the case. On 31.12.2018, the applicant met the Additional Director General of Police, who instructed the Station House Officer, Police Station Kotwali Chinhat, Lucknow to do the needful, including arrest of the accused persons. On 1.1.2019 the Senior Superintendent of Police, Lucknow again instructed the Station House Officer, Police Station Kotwali Chinhat to do the needful and get the accused arrested. It was further said that despite having non-bailable arrest warrants dated 10.1.2019 issued by the learned Magistrate, the police did not arrest the accused nor pursued the proceedings under Section 82/83 Cr.P.C. It was further said that hard disk of the CCTV footage of the hotel dated 21.12.2018 was seized by the Investigating Officer, but he did not retrieve the incident image/clipping showing the time and place of the incident.
11. On 11.4.2019, learned Chief Judicial Magistrate, Lucknow wrote a letter to the Senior Superintendent of Police, Lucknow stating that in the investigation of F.I.R. No.1194 of 2018 (Supra), the Investigating Officer was not making efforts to get the accused arrested. Non-bailable warrants were obtained on 10.1.2019 from the Court, but despite two months having gone by, the Investigating Officer had not arrested the accused nor he had taken any proceedings for process under Section 82/83 Cr.P.C. It was further said that despite the matter being quite serious, the Investigating Officer had not been making enough efforts. It was said that on 18.3.2019 similar letter was written to the Senior Superintendent of Police, Lucknow, but the Investigation Officer had not taken any effective and satisfactory steps in the investigation. The Senior Superintendent of Police, Lucknow was requested to direct the Investigating Officer to complete the investigation of the offence on priority basis. Again similar letter was written by the Chief Judicial Magistrate, Lucknow to the Director General of Police on 27.4.2019 referring to his earlier letters dated 18.3.2019 and 11.4.2019 on the subject. Thereafter, on 15.5.2019 the process under Section 82/83 Cr.P.C. was issued against the accused, but the accused could not be arrested.
12. On 26.7.2019, respondent no.3 filed an application under Section 438 Cr.P.C. in the Court of District & Sessions Judge, Lucknow. The learned Sessions Judge, Lucknow on the same day granted an interim bail to him. The application was fixed for 5.8.2019 for final order. Thereafter, on 9.8.2019 the impugned order has been passed granting the respondent no.3 anticipatory bail.
13. Learned Sessions Judge, Court No.1, Lucknow in the impugned order has held that, prima facie, the incident was an accident. Whether the owner of the hotel and the manager were negligent or not, can be decided during the trial. Whether Section 304 I.P.C. is attracted or not in the facts and circumstances of the case, also can be decided only after trial. The accused has no criminal history and, there is no likelihood of him fleeing away during the course of trial. Considering these aspects, the respondent no.3 has been granted the anticipatory bail till completion of the investigation with the conditions mentioned in the order.
14. Heard Sri Jyotinjay Misra, learned Senior Advocate assisted by Sri Sushil Kumar Singh, learned counsel for the applicant and Sri L.P. Mishra for respondent no.3 and Sri Balram Singh, learned AGA for the State.
15. The question which falls for consideration in the present case is whether the learned Sessions Court should have granted anticipatory bail to the accused, who has been able to avoid his arrest for seven months despite non-bailable warrants against him as well as issuance of process under Section 82/83 Cr.P.C. and dismissal of his writ petition and learned Chief Judicial Magistrate writing to the police authorities.
16. The provisions of anticipatory bail have been reintroduced vide U.P. Act No.4 of 2019, which received assent of the President on 1.6.2019, w.e.f. 6.6.2019.
17. The law of anticipatory bail is well settled. The right to liberty is a natural, inalienable right and is enshrined as a fundamental right under Article 21 of the Constitution of India. However, a person has to respect the rights of others recognized by law like the inviolability of their body and their property. When a person is reasonably suspected to have committed an offence the machinery of law is set in motion to arrest him and to bring him to trial and punish him if found guilty. The act of arrest deprives a person of his liberty. Bail sets him free on securing his promise to take trial at a future date and to undergo punishment if found guilty.
18. After Independence, by virtue of Article 372 of the Constitution of India the framers of the constitution had in their wisdom deemed that all laws in force in India, immediately before the commencement of the Constitution, were to be continued. By virtue of Article 372, the colonial Code of Criminal Procedure, which was drafted in 1898, was deemed to be the law in force even after commencement of the Constitution. Under the Code of 1898, there was no provision for the concept of an ''Expectant/Anticipatory Bail' contained in the statute. Though, the concept of an expectant bail, even prior to the arrest of the individual was not alien to the British criminal regime, the same was never enshrined in the statutory code applicable in India. Hence, shortly after independence, there was a divergence of opinion amongst the various High Courts on the power(s) of the Court(s) to exercise and extend the protection of bail, even prior to the arrest of a person(s). The majority view was that the High Court did not possess the inherent power to extend the powers of bail prior to arrest, as there was no such statutory provision in the Code of 1898. When the Law Commission was tasked with the preparation of the 41st Report on the Code of 1898 in 1968, one of the recommendations made by the Commission after careful and deliberate consideration was the introduction of the concept of ''Anticipatory Bail'.
19. The Law Commission was of the opinion that a necessity had arisen for grant of anticipatory bail primarily for the reason in the rise of the number of false criminal cases being filed by rivals to implicate influential persons and having them restrained for days in police custody, so as to disgrace or intimidate them and, as the political climate was growing ever more hostile & adversarial and the number of such false cases were likely to increase. The Commission also noted that even apart from the possibility of such false cases being filed, if 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, there was no justification to require such a person to first submit to custody, then remain incarcerated for some days, and then apply for bail. Therefore, the Law Commission was of the view that the power of anticipatory bail should be conferred only on the High Court and the Court of Sessions and that the order should take effect at the time of arrest. The Commission proposed that a new Section being Section 497A of the Code of 1898 be introduced, granting the power to the High Court or Court of Session to direct that a person may be released on bail in the event of his arrest, if such person had approached the Court having a reasonable apprehension that he would be arrested on an accusation of committing a non-bailable offence. What conditions should be imposed while granting anticipatory bail, the Commission though it proper to left it to the discretion of the High Court and the Court of Sessions for imposing such conditions.
20. The suggestions of the Law Commission were, in principle, accepted by the Central Government which introduced clause 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring an express power on the High Courts and the Court of Sessions. The Law Commission, in its 48th Report which was tabled in 1972, in order to prevent abuse, recommended that the final order should be made only after notice to the Public Prosecutor and an initial order should only be an interim one.
21. In light of the recommendations of the Committee requiring for a revamp of the Code, the Legislature repealed the Code of 1898 and enacted the Code of Criminal Procedure, 1973. The newly enacted CrPC contained the statutory provision empowering the High Court and the Sessions Court to grant anticipatory bail vide Section 438 of the CrPC.
22. Shortly, thereafter, an unprecedented Emergency was declared in the country. The State of Uttar Pradesh vide Section 9 of the U.P. Act 16 of 1976 omitted the application of Section 438 of the Cr.P.C. in the State of Uttar Pradesh, w.e.f. 01.05.1976. However, while the same was omitted by the State of Uttar Pradesh, the doctrine of anticipatory bail, as applicable to the rest of country, has evolved over the course of time. As mentioned earlier, the provisions of anticipatory bail by insertion of Section 438 Cr.P.C. in the State of Uttar Pradesh has been reintroduced w.e.f. 6.6.2019.
23. When the provisions of Section 438 Cr.P.C. were not applicable in the State of Uttar Pradesh, the accused used to approach the High Court under Article 226 of the Constitution of India for grant of relief of anticipatory bail.
24. The Supreme Court in the case of Hema Mishra Vs. State of Uttar Pradesh and others, (2014) 4 SC 453 has held that the accused under the normal circumstances would not be entitled to claim the relief against his arrest under Article 226 of the Constitution of India inasmuch as in absence of the provisions of Section 438 Cr.P.C., the second window for such a relief under Article 226 of the Constitution of India would not be available. However, the High Court in appropriate cases in exercise of its jurisdiction under Article 226 of the Constitution of India can grant such a relief, but such power is to be exercised with extreme caution and sparingly where arrest of a person would lead to total miscarriage of justice or where there may be cases where pre-arrest was entirely unwarranted and lead to disastrous consequences. It has also been held that on dismissal by the High Court under Article 226 of the Constitution of India, while examining the challenge for quashing the FIR or a charge-sheet, the High Court cannot grant further relief against arrest for specific period or till the completion of the trial. Paragrphas 21, 26, 27, 35 and 36 of the aforesaid judgement, which are relevant, are extracted herein below :-
"21. I may, however, point out that there is unanimity in the view that in spite of the fact that Section 438 has been specifically omitted and made inapplicable in the State of Uttar Pradesh, still a party aggrieved can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, being extraordinary jurisdiction and the vastness of the powers naturally impose considerable responsibility in its application. All the same, the High Court has got the power and sometimes duty in appropriate cases to grant reliefs, though it is not possible to pinpoint what are the appropriate cases, which have to be left to the wisdom of the Court exercising powers under Article 226 of the Constitution of India.
26. I would like to remark that in the absence of any provisions like Section 438 CrPC applicable in the State of Uttar Pradesh, there is a tendency on the part of the accused persons, against whom FIR is lodged and/or charge-sheet is filed in the Court, to file a writ petition for quashing of those proceedings so that they are able to get protection against the arrest in the interregnum which is the primary motive for filing such petitions. It is for this reason that invariably after the lodging of the FIR, a writ petition under Article 226 is filed with the main prayer to quash those proceedings and to claim interim relief against pre-arrest in the meantime or till the completion of the trial. However, the considerations which have to weigh with the High Court to decide as to whether such proceedings are to be quashed or not are entirely different than that of granting interim protection against the arrest. Since the grounds on which such an FIR or charge-sheet can be quashed are limited, once the writ petition challenging the validity of the FIR or charge-sheet is dismissed, the grant of relief, incidental in nature, against arrest would obviously not arise, even when a justifiable case for grant of anticipatory bail is made out.
27. It is for this reason, we are of the opinion that in appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest. Obviously, when provisions of Section 438 CrPC are not available to the accused persons in the State of Uttar Pradesh, under the normal circumstances such accused persons would not be entitled to claim such a relief under Article 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed in para 21 extracted above, the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice. There may be cases where pre-arrest may be entirely unwarranted and lead to disastrous consequences. Whenever the High Court is convinced of such a situation, it would be appropriate to grant the relief against pre-arrest in such cases. What would be those cases will have to be left to the wisdom of the High Court. What is emphasised is that the High Court is not bereft of its powers to grant this relief under Article 226 of the Constitution.
35. It is pertinent to mention that though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well-established principles, so much so that while entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision.
36. Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a device to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified."
25. Thus, while there was no provision for anticipatory bail in State of Uttar Pradesh, in appropriate cases, the High Court under Article 226 of the Constitution of India has been granting relief from arrest to a person.
26. A constitution Bench of the Supreme Court in Shri Gurbaksh Singh Sibbia and others v State of Punjab reported in (1980) 2 SCC 565 upheld the constitutionality of Section 438 Cr.P.C. The aforesaid judgement laid down guidelines and consideration for grant of anticipatory bail.
27. An anticipatory bail is a pre-arrest legal process, which directs that if the person in whose favour it is issued is, thereafter, arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore, means release from the custody of the police, the latter is granted in anticipation of arrest and, is therefore effective at the very moment of arrest. A direction under Section 438 is, therefore, intended to confer conditional immunity from the tough or confinement contemplated by Section 46 of the Code.
28. The Supreme Court in the aforesaid judgment culled out the distinction between bail and anticipatory bail by noting that the expression ''anticipatory bail' is a convenient mode of conveying that, it is possible to apply for bail in anticipation of arrest. The bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. The filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if, an FIR is not yet filed. Thus, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.
29. Paragraphs 7, 8, 35 and 41 of the judgement rendered in the case of Shri Gurbaksh Singh Sibbia and others (supra), which are relevant, are extracted herein below:-
"7. The facility which Section 438 affords is generally referred to as ''anticipatory bail', an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression ''anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to ''set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under Section 438 is intended to confer conditional immunity from this ''touch' or confinement.
8. No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-frosd, insofar as the ordinary rut of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a Court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so 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 a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a ''blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, 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 tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a ''blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
41. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum."
30. While the core principles of Anticipatory Bail are now well-defined and accepted by way of the Constitution bench judgment, an interesting dichotomy has crept in over the years in the judgments of the Hon'ble Supreme Court, as to the period for which the protection from imprisonment can be granted by a court of competent jurisdiction under Section 438 of the Cr.P.C.
31. The Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, (2011) 1 SCC 694 relying upon the Constitution Bench judgment in the case Shri Gurbaksh Singh Sibbia and others (supra) held that anticipatory bail granted by the competent court should ordinarily continue till the trial of the case. The said judgment was also followed recently by the Supreme Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another, (2016) 1 SCC 152.
32. However, there is another line of judgments, which takes strength from the law laid down by three Judges of the Hon'ble Supreme Court in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, (1996) 1 SCC 667, wherein the Supreme Court was dealing with a scenario where despite compliance of the conditions contained in the interim order of anticipatory bail by an applicant, the Sessions Judge rather than finalizing the same, directed the person to seek regular bail before the appropriate court. The three Judge Bench of the Hon'ble Supreme Court in those circumstances held as under :-
"2. Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.
3. It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail."
33. The aforesaid view has been followed by a number of decisions of the Hon'ble Supreme Court in the cases of K.L. Verma Vs. State and another, (1998) 9 SCC 348, Sunita Devi Vs. State of Bihar and another, (2005) 1 SCC 608, Adri Dharan Das Vs. State of West Bengal, (2005) 4 SCC 303. In all these cases, it has been categorically indicated that anticipatory bail had to be given for a limited duration, so as to enable the accused to move for regular bail under Section 437 CrPC.
34. However, this view has been held to be per incurium in the cases of Siddharam Satlingappa Mhetre (supra) and Reshmi Rekha Thatoi and another Vs. State of Orissa and others, (2012) 5 SCC 690.
35. The Supreme Court in the case of HDFC Bank Limited v J.J. Manan and another, (2010) 1 SCC 679, further elaborated on this line and held that purpose of Section 438 CrPC is to ensure that a person is not harassed or humiliated in a personal grudge/vendetta of a complainant. Provisions of Section 438 CrPC cannot be invoked to exempt an accused from surrendering to the court after investigation is complete and if charge-sheet is filed against him. It was held that upon conclusion of investigation and filing of a charge sheet, the accused has to surrender to the custody of the court and pray for regular bail and an accused cannot avoid appearing before the trial court, on the strength of an anticipatory bail.
36. In light of the conflicting views of the different Benches of varying strength, the legal position with regards to the duration of anticipatory bail is somewhat unsettled.
37. A three Judge Bench of the Hon'ble Supreme Court in Sushila Aggarwal v State (NCT of Delhi) (2018) 7 SCC 731 vide its order dated 15.05.2018, has found that the divergence of opinions is required to be authoritatively settled in clear and unambiguous terms. The Bench has framed two questions for reference for consideration by a Larger Bench:-
"1. Whether the protection granted to a person u/s 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail?
2. Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the Court?"
38. The said questions are pending adjudication by a Larger Bench before the Hon'ble Supreme Court.
39. Though there is a concurrent jurisdiction for grant of anticipatory bail under Section 438 Cr.P.C. inasmuch as it empowers both the High Court as well as the Curt of Sessions to grant anticipatory bail. Various High Courts of the country are of the opinion that propriety of the judicial hierarchy demands that unless there are some compelling reason; virtually and effectively depriving or disabling the accused to avail remedy before the Court below, the hierarchy of Courts has to be respected. In case of concurrent jurisdiction; if the High Court does not entertain the petition directly and on the contrary, ask the accused to go to the competent Court of jurisdiction of the first instance having the concurrent power, by doing so, it would not mean to deny his right to access to justice. In any case, he would be having his right to access to justice intact. It is well established that unless there are some extraordinary or exceptional circumstances, forcing the accused to move directly in the High Court for seeking anticipatory bail, in normal course, he should approach the Court of Sessions Judge.
40. It is also not in dispute that a person apprehending arrest in a case, in which the court within whose jurisdiction he ordinarily resides does not have jurisdiction, can grant anticipatory bail for a limited duration with a direction to the applicant to approach the Court concerned. Thus, an application under Section 438 should be finally decided only by the court within whose jurisdiction the alleged offence has been committed.
41. After the brief survey of the law on anticipatory bail, now coming to the facts of the present case, this Court is required to answer whether the Court of Sessions was right in granting anticipatory bail to respondent no.3.
42. From the facts narrated, it is clear that respondent no.3 was not available for interrogation and investigation and he was declared as "absconder". It is well settled that normally when the accused is absconding and declared as 'proclaimed offender', he should not be granted the anticipatory bail.
43. The Supreme Court in the case of Lavesh Vs. State (NCT of Delhi), (2012) 8 SCC 730 in somewhat similar circumstances in paragraphs 12 to 15 held as under:-
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.
13. On reading the FIR, the statements of various persons including the father and the mother of the deceased, the neighbours and the supplementary statement of the mother of the deceased it is clearly seen that all the family members of the husband of the deceased including the appellant, who is the elder brother of the husband of the deceased, subjected her to cruelty by demanding sizeable amount in order to settle the payment of Rs 5 lakhs of the allotted DDA flat.
14. Another circumstance against the appellant is that even though this Court on 23-1-2012 [Sangita v. State of Delhi, SLP (Cri) No. 331 of 2012, order dated 23-1-2012 (SC) wherein it was directed as follows:"Issue notice returnable in two weeks. Dasti service, in addition, is permitted. The counsel for the petitioner is permitted to serve notice on the Standing Counsel for the State of Delhi. The petitioner shall not be arrested in connection with FIR No. 259 of 2011 registered at Police Station Punjabi Bagh, New Delhi until further orders."] , while ordering notice, granted interim protection, namely, not to arrest the appellant in connection with FIR No. 259 of 2011 registered at Police Station Punjabi Bagh, New Delhi, it is the claim of the respondent State that the appellant did not cooperate and visit the said police station. Though Dr Sarbjit Sharma, learned counsel for the appellant, submitted that the appellant visited the police station on 23-3-2012, 20-7-2012, 24-7-2012 and 27-7-2012, it is brought to our notice that at the relevant period viz. 7-4-2012, 1-5-2012 and 18-6-2012, he neither visited the police station nor contacted Mr Narender Khatri, Inspector--Investigation, Punjabi Bagh Police Station. The last three dates are relevant since after getting the interim protection granted by this Court on 23-1-2012 [Sangita v. State of Delhi, SLP (Cri) No. 331 of 2012, order dated 23-1-2012 (SC) wherein it was directed as follows:"Issue notice returnable in two weeks. Dasti service, in addition, is permitted. The counsel for the petitioner is permitted to serve notice on the Standing Counsel for the State of Delhi. The petitioner shall not be arrested in connection with FIR No. 259 of 2011 registered at Police Station Punjabi Bagh, New Delhi until further orders."] , the appellant did not care either to visit the police station or to the investigating officer concerned. The claim of his visit on later dates, particularly, in the month of July 2012 have no relevance. Considering his conduct, not amenable for investigation and, moreover, declaring him as an absconder, there is no question of granting anticipatory bail. Thus, the conduct of the appellant does not entitle him to anticipatory bail as prescribed in Section 438 of the Code.
15. Taking note of all these aspects, in the light of the conditions prescribed in Section 438 of the Code and conduct of the appellant immediately after the incident as well as after the interim protection granted by this Court on 23-1-2012 [Sangita v. State of Delhi, SLP (Cri) No. 331 of 2012, order dated 23-1-2012 (SC) wherein it was directed as follows:"Issue notice returnable in two weeks. Dasti service, in addition, is permitted. The counsel for the petitioner is permitted to serve notice on the Standing Counsel for the State of Delhi. The petitioner shall not be arrested in connection with FIR No. 259 of 2011 registered at Police Station Punjabi Bagh, New Delhi until further orders."] , we are of the view that the appellant has not made out a case for anticipatory bail. Unless free hand is given to the investigating agency, particularly, in the light of the allegations made against the appellant and his family members, the truth will not surface."
44. The aforesaid judgement has been followed in the case of State of Madhya Pradesh Vs. Pradeep Sharma, (2014) 2 SCC 171. In paragraphs 16 to 18, it has been held as under:-
"16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730 : (2012) 3 SCC (Cri) 1040] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under: -
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as ''absconder'. Normally, when the accused is ''absconding' and declared as a ''proclaimed offender', there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
17. In the case on hand, a perusal of the materials i.e. confessional statements of Sanjay Namdev, Pawan Kumar alias Ravi and Vijay alias Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of the witnesses that were recorded and the report of the Department of Forensic Medicine and Toxicology, Government Medical College and Hospital, Nagpur dated 21-3-2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21-11-2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29-11-2012. The documents (Annexure P-13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondent-accused under Section 82 of the Code to answer the complaint on 29-12-2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating "facts and circumstances of the case", granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120-B read with Section 34 IPC. In such serious offences, particularly, the respondent-accused being proclaimed offenders, we are unable to sustain the impugned orders [Sudhir Sharma v. State of M.P., Misc. Criminal Case No. 9996 of 2012, order dated 10-1-2013 (MP)] , [Gudda v. State of M.P., Misc. Criminal Case No. 15283 of 2012, order dated 17-1-2013 (MP)] of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.
18. In the light of what is stated above, the impugned orders of the High Court dated 10-1-2013 and 17-1-2013 in Sudhir Sharma v. State of M.P. [Sudhir Sharma v. State of M.P., Misc. Criminal Case No. 9996 of 2012, order dated 10-1-2013 (MP)] and Gudda v. State of M.P. [Gudda v. State of M.P., Misc. Criminal Case No. 15283 of 2012, order dated 17-1-2013 (MP)] respectively are set aside. Consequently, the subsequent order of the CJM dated 20-2-2013 in Crime No. 1034 of 2011 releasing the accused on bail after taking them into custody in compliance with the impugned order of the High Court is also set aside. In view of the same, both the respondent-accused are directed to surrender before the court concerned within a period of two weeks failing which the trial court is directed to take them into custody and send them to jail. Both the appeals are allowed on the above terms."
45. It is also well settled that parameters which have been laid down in numerous judgments, are required to be satisfied while granting such relief. The Court must record reasons therefor.
46. The Supreme Court in the case of Jai Prakash Singh Vs. The State of Bihar and another, (2012) 4 SCC 379 while dealing with the challenge to grant anticipatory bail to an accused under Section 438 Cr.P.C. by the High Court, in paragraphs 19 to 22 held as under :-
"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [(2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345] , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)
20. In the case at hand, if considered in the light of the aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused. The High Court erred in not considering the case in the correct perspective and allowed the said applications on the grounds that in the FIR some old disputes had been referred to and the accused had fair antecedents.
21. The relevant part of the High Court judgment impugned before us reads as under:-
"Considering that the only allegation in the first information report is that there was previously some dispute between the deceased and the petitioner and they had quarrelled on account of the same, let the petitioner abovenamed, who has fair antecedents, be released on anticipatory bail...."
22. In the facts and circumstances of this case, we are of the considered opinion that it was not a fit case for grant of anticipatory bail. The High Court ought to have exercised its extraordinary jurisdiction following the parameters laid down by this Court in the abovereferred to judicial pronouncements, considering the nature and gravity of the offence and as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very lightly brushed aside the fact that the FIR had been lodged spontaneously and further did not record any reason as to how the prerequisite conditions incorporated in the statutory provision itself stood fulfilled. Nor did the court consider as to whether custodial interrogation was required. The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law, duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors the grounds provided in Section 438 CrPC itself suffers from non-application of mind and therefore, cannot be sustained in the eye of the law."
47. The Supreme Court in a recent judgment in the case of P. Chidambaram Vs. Directorate of Enforcement in Criminal Appeal No.1340 of 2019, decided on 5.9.2019 has held that the power under Section 438 Cr.P.C. has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. Paragraphs 67, 68 and 72 of the aforesaid judgment, which are relevant, are extracted herein below:-
"67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. 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. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power 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.
68. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India.
72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
48. Sri L.P. Mishra, learned counsel for respondent no.3, however, submits that the parameters for cancellation of anticipatory bail are different than the grant of regular bail. He further submits that until and unless there is misuse of liberty granted to an accused, ordinarily the Court should not cancel the bail already granted. In support of his submission, he has placed reliance upon the judgement of the Supreme Court in the case of State of Maharashtra and another Vs. Mohd. Sajid Husain Mohd. S. Husain and others, (2208) 1 SCC 213. Paragraphs 20, 34 of the aforesaid judgement are extracted herein below:-
"20. The four factors, which are relevant for considering the application for grant of anticipatory bail, are:
"(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a court, previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice."
34. Reliance has been placed by Mr Patwalia on Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] . This Court therein opined that in an application for cancellation of bail, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But the court while considering an appeal against grant of anticipatory bail would keep in mind the parameters laid down therefor. The matter, however, may be different for deciding an appeal from an order granting bail, where the accused has been at large for a considerable time, in which event, the post-bail conduct and other supervening circumstances will also have to be taken note of."
49. Another judgement which Sri Mishra has cited in support of his contention, is State of U.P. through CBI Vs. Amarmani Tripathi, (2005) 8 SCC 21. Paragraphs 16, 17 and 18 of the aforesaid judgement are extracted herein below:-
"16. Reliance is next placed on Dolat Ram v. State of Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri) 237] wherein the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out: (SCC pp. 350-51, para 4) "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
17. They also relied on the decision in Samarendra Nath Bhattacharjee v. State of W.B. [(2004) 11 SCC 165 : 2004 SCC (Cri) Supp 7] where the above principle is reiterated. The decisions in Dolat Ram [(1995) 1 SCC 349 : 1995 SCC (Cri) 237] and Bhattacharjee [(2004) 11 SCC 165 : 2004 SCC (Cri) Supp 7] cases relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post-bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.
18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting 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 in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)"
50. Both the judgments cited by Sri Misra are in respect of grant of regular bail and not the anticipatory bail.
51. It is well settled that power to grant anticipatory bail is an extra ordinary power and it should be exercised sparingly. The Supreme Court in two judgments cited above i.e. Lavesh Vs. State (NCT of Delhi) and State of Madhya Pradesh Vs. Pradeep Sharma (supra) held that an absconder or proclaimed offender should not be granted anticipatory bail. In the present case, respondent no.3 has been able to avoid arrest since the date of the F.I.R. and despite having obtained non-bailable warrants against him on 10.1.2019 and issuance of the proclamation under Section 82/83 Cr.P.C. he was not arrested. The Chief Judicial Magistrate, Lucknow wrote letters to the highest police authorities for instructions and direction to the Investigating Officer to complete the investigation and effect the arrest of the accused, but despite the aforesaid direction, the accused was not arrested. The role of the Investigating Officer and his complicity in not arresting the accused is not required to be commented upon, which is evident from his conduct. Further, the Sessions Court has not considered these aspects regarding issuance of the non-bailable warrants and the process under Section 82/83 Cr.P.C. and without taking into consideration, it has granted the anticipatory bail in the manner which is not in consonance with the law laid down by the Supreme Court in several judgements which have been referred to and relevant paragraphs have been extracted herein-above.
52. Thus, considering all these aspects of the matter, the impugned order dated 9.8.2019 is unsustainable and, therefore, set aside.
53. However, it has been informed at the Bar that charge sheet has been filed against the accused.
54. In view of the subsequent development of filing the charge sheet, it would be open to respondent no.3 to surrender before the trial court and apply for regular bail.
55. Subject to above observation and direction, the application is allowed.
( Dinesh Kumar Singh, J. ) Order Date :- 1.10.2019 Rao/-