A constitutional bench of the Supreme court has ruled that the protection of anticipatory or pre-arrest bail cannot be limited to any time frame or fixed period as denial of bail amounts to deprivation of the fundamental right to personal liberty in a free and democratic country.
Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy of detention in jail for days on end and disgrace to their reputation.
A five-judge Bench acknowledged that anticipatory bail helps thwart influential powers from implicating their rivals in false cases.
The court said, the life or duration of an anticipatory bail order does not normally end 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.
The questions referred to the Constitution Bench were twofold: whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court, and whether the life of anticipatory bail should end when the accused is summoned by the court.
The court held that protection against arrest should inure in favour of the accused. Restricting the protection would prove unfavourable for the accused.
It said that, courts have to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice.
The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long as there is reasonable basis for apprehension of arrest and clarity of facts.
The grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought. It is open for the police to move court for arrest of the accused if there is any violation of bail conditions, the ruling said.