Libertatem Magazine

Merely because a serious Charge is added at later stage is not by itself not a ground to refuse Anticipatory Bail: SC

Contents of this Page


Supreme Court on 2nd Sept, held that merely because the accused is charged with a serious offense at a later stage may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. The court observed that no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014. Justices A.K. Sikri and  Rohinton Fali Nariman said “the benefit of anticipatory bail cannot be denied when such a charge (under section 376 IPC) is added after a long period of time and inaction of the prosecutrix is also a contributory factor.”

The complainant and the accused were neighbours. In 2001 the complainant filed a complaint under section 506 IPC and after 9 years she made an application to include offence under Section 376 IPC as well. Ultimately, the Police filed a revised charge sheet stating that a prima facie case under Section 376 IPC was also made out. In view of addition of charge under Section 376 IPC, the Magistrate passed the order on 25.04.2013 for committal of proceedings to the Sessions Court and taking the appellant into custody. However, execution of this order for taking the appellant into custody was stayed till 07.05.2013. During this period, the appellant moved the Sessions Court  at Ahmedabad for grant of anticipatory bail which was ultimately granted on 18.05.2013. Against this order of grant of anticipatory bail, the prosecutrix filed criminal revision petition which was allowed by the High Court.

The apex court bench said that even when there is a serious charge levelled against the appellant, that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view the following facts of the case

Charge has been framed 17 years after the alleged offence

There is no allegation that the accused may flee the course of justice

The appellant has participated in the proceedings from its beginning

There is no allegation that during this period he had tried to influence the witnesses.

The court’s proceedings

The court added “At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case””. The Court also opined that “great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.”

The Court also relied on the Constitution Bench  decision in Gurbaksh Singh Sibbia and Others v. State of Punjab which had held that  provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty.

At the end, the Bench summarised the Principles relating to Anticipatory Bail as follows;

(i)   The complaint filed against the accused needs  to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on the earlier occasion.  The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law.  If the connivance between the complainant and the investigating officer is established then action be taken against  the investigating officer in accordance with law.

(ii)  The gravity of charge and the exact role of the accused must  be properly comprehended.  Before arrest, the arresting  officer  must  record the valid reasons which have led to the arrest of the accused  in  the  case diary.  In exceptional cases, the  reasons  could  be  recorded  immediately after the arrest, so that while  dealing  with  the  bail  application,  the remarks and observations of the  arresting  officer  can  also  be  properly evaluated by the court.

(iii) It is imperative for the  courts  to  carefully  and  with  meticulous precision evaluate the facts of the case.   The  discretion  to  grant  bail must be exercised on the basis of the available material and  the  facts  of the particular case.  In cases where the court is of  the  considered  view that the accused has joined the investigation and he  is  fully  cooperating with the investigating agency and is not likely to abscond, in  that  event, custodial interrogation should be avoided.  A  great  ignominy,  humiliation and  disgrace  is  attached  to  arrest.   Arrest  leads  to  many   serious consequences not only for the accused but  for  the  entire  family  and  at times for the entire community.  Most people do  not  make  any  distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv)  There is no justification  for  reading  into  Section  438  CrPC  the limitations mentioned in Section 437 CrPC.  The plentitude  of  Section  438 must be given its full play.  There is no requirement that the accused  must make  out  a  “special  case”  for  the  exercise  of  the  power  to  grant anticipatory bail.  This virtually, reduces the salutary power conferred  by Section 438 CrPC to a dead letter.  A person seeking  anticipatory  bail  is still a free man entitled to the presumption of innocence.   He  is  willing to submit to restraints and conditions on his freedom, by the acceptance  of conditions which the court may deem fit to impose, in consideration  of  the assurance that if arrested, he shall be enlarged on bail.

(v)   The proper course of action on an application  for  anticipatory  bail ought to be that after evaluating the averments  and  accusations  available on the record if the court is inclined to grant anticipatory  bail  then  an interim bail be granted and notice  be  issued  to  the  Public  Prosecutor. After hearing  the  Public  Prosecutor  the  court  may  either  reject  the anticipatory bail application or  confirm  the  initial  order  of  granting bail.  The court would certainly be entitled to impose conditions  for  the grant of anticipatory bail.  The Public Prosecutor or the complainant would be at liberty to move the same court  for  cancellation  or  modifying  the conditions of anticipatory bail at any time if liberty granted by the  court is misused.  The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi)  It is a settled legal position that the court which grants the  bail also has the power to cancel it.  The discretion of grant  or  cancellation of bail can be exercised either at the instance of the accused,  the  Public Prosecutor or the complainant, on finding new material or  circumstances  at any point of time.

(vii) In pursuance of the order of the Court of Session or the  High  Court, once the accused is released on anticipatory bail by the trial  court,  then it would be unreasonable to compel  the  accused  to  surrender  before  the trial court and again apply for regular bail.

(viii)  Discretion  vested  in  the  court  in  all  matters  should  be exercised  with  care  and  circumspection  depending  upon  the  facts  and circumstances justifying its exercise.   Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence.  It is unnecessary to travel beyond it and subject the  wide power and discretion conferred by the legislature  to  a  rigorous  code  of self-imposed limitations.

(ix)  No inflexible guidelines or straitjacket formula can be  provided  for grant  or  refusal  of  anticipatory  bail  because  all  circumstances  and situations of future cannot be clearly visualised for the grant  or  refusal of anticipatory bail.  In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x)   We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a)   The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b)   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;

(c)   The possibility of the applicant to flee from justice;

(d)   The possibility of the accused’s likelihood to repeat similar or other offences;

(e)   Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f)   Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g)   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  the  accused  is implicated with the help of Sections 34 and 149 of the Penal Code, 1860  the court  should  consider  with  even  greater  care  and   caution,   because over implication in the cases is a matter of common knowledge and concern;

(h)   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  free,  fair  and  full  investigation,  and  there  should  be prevention of harassment,  humiliation  and  unjustified  detention  of  the accused;

(i)   The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j)   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 in entitled to an order of bail.


Justice Surinder Gupta granted anticipatory bail to Ryan International CEO Ryan Augustine Pinto and his parents Augustine Francis Pinto and Grace Pinto, who had earlier been granted interim protection from arrest

About the Author