Q. Which are the main guiding principles to exercise discretion under Section-438 of the Cr.P.C.?
Ans. It Is not proper to fix any formula to grant or refuse anticipatory bail as decided in case of SIDHHARAM SATLINGAPPA MEHTRE V/s. STATE OF MAHARASHTRA reported in – 2011(1) GLH 11, but as a general guiding principles to exercise discretion under Section-438 of the Cr.P.C., a competent court has to keep in mind the position of law emerged from the discussion in various judgments by Hon’ble High Courts and Supreme Court. The Court has further held that the following factors and parameters can be taken into consideration while dealing with the anticipatory bail.
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.
ii. 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.
iii. The possibility of the applicant to flee from justice.
iv. The possibility of the accused’s likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. 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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern.
viii. 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
x. 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 is entitled to an order of bail.
It has been held by Hon’ble Gujarat High Court in case of SOLANKI RAVIBHAI DIPUBHAI V/S STATE OF GUJARAT- reported in 1992 (1) GLR 631 that ……….
“Exercise of discretion under Sec. 438 of the Code is a stage prior to exercise of discretion under Sec. 437 or 439 of the Code. That is prior to arrest. Thus, if the Court is satisfied that by allowing the persons apprehending arrest, the investigation is either to suffer or is likely to be prejudiced, as it may appear on perusing the case diary, the Court should refuse to exercise such discretion. On the other hand, if such person remained at large, the prosecution is neither to be prejudiced nor suffer any hindrance, then the application is required to be considered like one of the persons arrested of non-bailable offence asking for bail. If from the facts and circumstances and evidence on record (including case diary), if person can be granted bail, even if arrested, then there may be no harm in granting anticipatory bail to such person, because such person is likely to be released on bail even if arrested. Keeping in mind this position of law having emerged from the discussion hereinabove, it is to be considered whether the applicants are entitled to exercise of discretion in their favour.