Conditions which the Session court may impose while granting Ad Interim Anticipatory Bail

Ad interim anticipatory bail provides temporary protection to an accused while their anticipatory bail application is under consideration. Courts impose specific conditions to balance the fundamental right to liberty with the interests of justice and investigation. This article explores the common conditions imposed by courts.

Common Conditions Imposed by Courts

1. Cooperation with Investigation

   Courts often direct the accused to cooperate fully with the investigating agency, including appearing for interrogation when summoned.  

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Supreme court: Factors which the High court and Session court must consider while releasing accused on anticipatory bail

23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:

(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 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 Code of Criminal Procedure the limitations mentioned in Section 437 Code of Criminal Procedure. 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1134-1135 of 2015.

Decided On: 01.09.2015

Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Rohinton Fali Nariman, JJ.

Author: A.K. Sikri, J.

Citation: MANU/SC/0949/2015,AIR 2015 SC 3090,( 2016 ) 1 SCC 152.

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Supreme Court: Procedure the High court or Session Court must follow while entertaining Anticipatory bail application

We may remind the High Court of what this Court observed

in the case of Srikant Upadhyay & Ors. v. State of Bihar &

Anr., reported in 2024 INSC 202. We quote the relevant

observations as under:

“… A bare perusal of Section 438(1), Cr.PC, would

reveal that taking into consideration the factors

enumerated thereunder the Court may either reject

the application forthwith or issue an interim order

for the grant of anticipatory bail. The proviso

thereunder would reveal that if the High Court or,

the Court of Sessions, as the case may be, did not

pass an interim order under this Section or has

rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a

police station to arrest the person concerned

without warrant, on the basis of the accusation

apprehended in such application. In view of the

proviso under Section 438(1), Cr.PC, it cannot be

contended that if, at the stage of taking up the

matter for consideration, the Court is not rejecting

the application, it is bound to pass an interim

order for the grant of anticipatory bail. In short,

nothing prevents the court from adjourning such an

application without passing an interim order. This

question was considered in detail by a Single Bench

of the High Court of Bombay, in the decision in

Shrenik Jayantilal Jain and Anr. v. State of

Maharashtra through EOW Unit II, Mumbai 2014 SCC

Online Bom 549 and answered as above and we are in

agreement with the view that in such cases, there

will be no statutory inhibition for arrest. Hence,

the appellants cannot be heard to contend that the

application for anticipatory bail filed in November,

2022 could not have been adjourned without passing

interim order.…

We have already held that the power to grant

anticipatory bail is an extraordinary power. Though

in many cases it was held that bail is said to be a

rule, it cannot, by any stretch of imagination, be

said that anticipatory bail is the rule. It cannot

be the rule and the question of its grant should be

left to the cautious and judicious discretion by the

Court depending on the facts and circumstances of

each case. While called upon to exercise the said

power, the Court concerned has to be very cautious

as the grant of interim protection or protection to

the accused in serious cases may lead to miscarriage

of justice and may hamper the investigation to a

great extent as it may sometimes lead to tampering

or distraction of the evidence. We shall not be

understood to have held that the Court shall not

pass an interim protection pending consideration of

such application as the Section is destined to

safeguard the freedom of an individual against

unwarranted arrest and we say that such orders shall

be passed in eminently fit cases. At any rate, when

warrant of arrest or proclamation is issued, the

applicant is not entitled to invoke the

extraordinary power. Certainly, this will not

deprive the power of the Court to grant pre-arrest

bail in extreme, exceptional cases in the interest

of justice. …”{Para 16}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.5456 OF 2024

DEEPAK AGGARWAL  Vs  BALWAN SINGH & ANR.

Dated: 18th December, 2024.

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LLM Notes: Ten Bullet points on Dependency Theories - For Its Realization Justice Depends on Law, But Justice is Not the Same as Law

 1.       Legal Positivism Defined: Legal positivism asserts that the existence and content of law depend on social facts, not on its merits or alignment with ideals like justice or democracy.

2.       John Austin's Perspective: Austin emphasized the separation of law's existence from its merit, stating that whether a law exists is distinct from whether it conforms to a standard.

3.       Hans Kelsen's View: Kelsen argued for a "pure science of law," advocating a clear separation between law and justice, as justice is subjective and indeterminate.

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