Judicial Dictionary

Anticipatory bail (granting)

It is a well settled principle of law that the setting aside of an “unjustified, illegal or perverse order” granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation. In Puran v. Ramvilas [2001 (6) SCC 338], this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled. The recording of no reasons is one end of the spectrum. The other end of the domain for interference with an order granting anticipatory bail (into which the present case settles) is where the reasons are contrary to the material on record and hence found to suffer from perversity.

The facts which must be borne in mind while considering an application for the grant of anticipatory bail have been elucidated in the decision of supreme court t in Siddharam Satlingappa Mhetre v. State of Maharashtra [JT 2010 (13) SC 247] and several other decisions.

The factors to be considered include:

“112. […]

(i) the nature and gravity of the accusation and the exact role of the accused;

(ii) the antecedents of the applicant including whether the accused has previously undergone imprisonment on a conviction by a court in respect of a cognizable offence;

(iii) the possibility of the applicant fleeing from justice;

(iv) the likelihood of the accused repeating similar or other offences;

(v) whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting them;

(vi) the impact of the grant of anticipatory bail particularly in cases of magnitude affecting a large number of people;

(vii) The court must carefully evaluate the entire material against the accused. The court must also clearly comprehend the exact role of the accused in the case. Cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should be considered with even greater care and caution because overimplication in such cases is a matter of common knowledge and concern;

(viii) 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;

(ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

(x) 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.

REF: Dr Naresh Kumar Mangla v. Smt. Anita Agarwal & Ors. Etc. [JT 2020 (12) SC]

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