If police have not filed charge sheet you can bide your time till invesigation by the police and charge aheet is filed. Apply for anticipatory bail in High Court.Without taking into their custody also polic ecan interrogate you before applying fro anticipatory bail. Once you move an application for Anticipatory bail the court may give notice to public prosecutor and after hearing the puiblic prosecutor they may issue an intrim bail(court) or reject anticipatory bail. So you need not surrender or get arrested for the issuance of Anticipatory Bail in High Court. they may grant you bail till trial is over..Let us see the Judgement of rthe Apex court in almost asimilar case whewr eultimately th esuprem court granted Antricipatory Bail to the accused on his being alleged of commiting rape of the complainnat or prosecutrix.If you appreciate this answer please click the thank you button on this forum. Since I couldn't find provision fo rAttachment document I'm straight away posting the judgment for your perusal.
IN Bhadresh Bipin Sheth vs.State of Gujarat The supreme court held as follows regarding Anticipatory Bail:
31. In regard to anticipatory bail, if the
proposed accusation appears to stem not from
motives of furthering the ends of justice but from
some ulterior motive, the object being to injure
and humiliate the applicant by having him
arrested, a direction for the release of the
applicant on bail in the event of his arrest would
generally be made. On the other hand, if it
appears likely, considering the antecedents of
the applicant, that taking advantage of the order
of anticipatory bail he will flee from justice, such
an order would not be made. But the converse of
these propositions is not necessarily true. That is
to say, it cannot be laid down as an inexorable
rule that anticipatory bail cannot be granted
unless the proposed accusation appears to be
actuated by mala fides; and, equally, that
anticipatory bail must be granted if there is no
fear that the applicant will abscond. There are
several other considerations, too numerous to
enumerate, the combined effect of which must
weigh with the court while granting or rejecting
anticipatory bail. The nature and seriousness of
the proposed charges, the context of the events
likely to lead to the making of the charges, a
reasonable possibility of the applicant’s presence
not being secured at the trial, a reasonable
apprehension that witnesses will be tampered
with and “the larger interests of the public or the
State” are some of the considerations which the
court has to keep in mind while deciding an
application for anticipatory bail. The relevance of
these considerations was pointed out in
The
State
v.
Captain Jagjit Singh,
AIR 1962 SC 253 :
(1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which,
though, was a case under the old Section 498
which corresponds to the present Section 439 of
the Code. It is of paramount consideration to
remember that the freedom of the individual is as
necessary for the survival of the society as it is
for the egoistic purposes of the individual. A
person seeking anticipatory bail is still a free
man entitled to the presumption of innocence.
He is willing to submit to restraints on his
freedom, by the acceptance of conditions which
the court may think fit to impose, in consideration
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of the assurance that if arrested, he shall be
enlarged on bail.”
21.
It is pertinent to note that while interpreting the expression “may, if
it thinks fit” occurring in Section 438(1) of the Code, the Court
pointed out that it gives discretion to the Court to exercise the
power in a particular case or not, and once such a discretion is
there merely because the accused is charged with a serious
offence may not by itself be the reason to refuse the grant of
anticipatory bail if the circumstances are otherwise justified. 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
remarked that a wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of its
intemperate use.
22.
Another case to which we would like to refer is the judgment of a
Division Bench of this Court in the case of
Siddharam
Satlingappa Mhetre
v.
State of Maharashtra and Others
2
. This
case lays down an exhaustive commentary of Section 438 of the
Code covering, in an erudite fashion, almost all the aspects and in
the process relies upon the aforesaid Constitution Bench
2
(2011) 1 SCC 694
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judgment in
Gurbaksh Singh's
case. In the very first para, the
Court highlighted the conflicting interests which are to be
balanced while taking a decision as to whether bail is to be
granted or not, as is clear from the following observations:
“
1. Leave granted. This appeal involves issues
of great public importance pertaining to the
importance of individual's personal liberty and
the society's interest. Society has a vital interest
in grant or refusal of bail because every criminal
offence is the offence against the State. The
order granting or refusing bail must reflect
perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the
interest of the society. The law of bails dovetails
two conflicting interests, namely, on the one
hand, the requirements of shielding society from
the hazards of those committing crimes and
potentiality of repeating the same crime while on
bail and on the other hand, absolute adherence
to the fundamental principle of criminal
jurisprudence regarding presumption of
innocence of an accused until he is found guilty
and the sanctity of individual liberty.”
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
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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
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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
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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
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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
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Penal Code, 1860 the court should consider with even greater
care and caution, because overimplication 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.
24.
Having regard to the facts of this case which have already been
highlighted above, we feel 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. The investigation is complete and there is no allegation
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and the trial court should endeavour to complete the same within
one year.
27.
As a result, we set aside the impugned judgment and restore the
order dated 18.05.2013 of the learned Additional Sessions Judge
granting anticipatory bail to the appellant on the conditions
mentioned in the said order. Appeals are allowed in the aforesaid
terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ROHINTON FALI NARIMAN)
NEW DELHI;
SEPTEMBER 01, 2015.
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