Courts in “extraordinary circumstances” have the discretion to grant protection from arrest to accused even while denying them anticipatory bail, but the power cannot be exercised in an untrammelled manner, and the order will have to be a reasoned one, the Supreme Court ruled on Friday.
“We cannot be oblivious to the circumstances that courts are faced with…while dealing with anticipatory bail applications. Even when the court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the trial court,” a bench of Chief Justice N V Ramana and Justices Surya Kant and Aniruddha Bose said.
For example, the bench said, “the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice.
“It needs no mentioning, but this court may also exercise its powers under Article 142 of the Constitution to pass such an order.”
“However, such discretionary power cannot be exercised in an untrammeled manner,” the apex court said. “The court must take into account the statutory scheme under Section 438, Cr.P.C., (which deals with anticipatory bail)….and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one,” the CJI said, writing for the bench.
The court was hearing appeals against two High Court orders which, while rejecting the prayer of the accused for anticipatory bail, had asked them to surrender before the trial court and file a regular bail application within 90 days, and protected them from any coercive action during this period.
This was challenged in the top court on the ground that the HC could not have given them any further protection, as it had declined the final relief of pre-arrest bail.
Disagreeing, the SC said that while this submission “appears to be attractive, we are of the opinion that such an analysis of the provision is incomplete”. The court noted, “It is no longer res integra that any interpretation of the provisions of Section 438, Cr.P.C. has to take into consideration the fact that the grant or rejection of an application under Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief”.
The bench, however, said that in the instant case, the HC had committed a “grave error” by protecting them from arrest while denying pre-arrest bail and set aside the HC order.
Read order here: