case law for Anticipatory Bail Application

Hello,

These are some of the landmark Cases  pertaining to your query:

Sushila Agarwal v. State of Delhi ¹

The Hon'ble court was pleased to frame 2 questions while deciding the landmark judgment viz.:

1. Whether the protection granted to a person under Section 438 of Cr.P.C 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 life of anticipatory bail should end at the time and stage when the accused is summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by holding that there can be no time limit set for the Anticipatory Bail by the court granting the same. The five-judge bench was pleased to unanimously hold that " the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time."

Answering the second question the Hon'ble court held that "The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."

The Supreme Court was cautious while answering the second question by granting discretionary powers to the court to limit the tenure of the Anticipatory Bail in case of special or peculiar facts of case.

Not granting Anticipatory bail may cause violation of fundamental rights of an individual under Article 21 of the Constitution of India

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat² was pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that 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 apex court while observing the above celebrates the two provisions and related them together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld the fundamental right of the citizen.

Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with maximum 7 years imprisonment

Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar³ while deciding an application for ABA for offences u/s 498A, felt it necessary to observe that there should be a mandatory notice u/s 41A to be sent to the accused if he is booked for offence with punishment up to 7 years.

Rights of First Informant to intervene in Anticipatory Bail Application

The Hon'ble High Court of Bombay in the case of Vinay Potdar v. State of Maharashtra⁴ held that, if victim of the offence appeared in the court seeking permission to be heard, then opportunity of being heard is to be given to him or her.

However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra,⁵ took a slightly contrary view to what we discussed above. The court held that "The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardized.

The Hon'ble Supreme Court, in case of M.C Abraham and Anr v. State of Maharashtra and Anr⁶ , has held that it is not mandatory for the police to arrest a person merely because his/her Anticipatory Bail has been rejected.

Thank you