The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State

Daniyal Qureshi | Symbiosis Law School Pune | 17th March 2020

Rishi Puri v. State of Himachal Pradesh MANU/HP/0303/2020

Facts

The brief facts of the case being that the complainant had filed a complaint before the Judicial Magistrate First Class, Kasuali under Section 156(3) of the Criminal Code of Procedure 1973 complaining of misappropriation of funds and cheating. Subsequent to which a FIR was filed in the Dharampur Police Station Himachal Pradesh.

The petitioner who is apprehending his imminent arrest in above mentioned FIR filed under section 406 and 420 of the Indian Penal Code 1860 has made this petition to the High court under section 438 of the Criminal Code of Procedure 1973. 

Issue

Whether the petitioner is entitled to anticipatory bail 

Judgement

In this present judgement the High Court at length has attempted to lay down clear law as regards to anticipatory bail. It is established understanding through way of precedents that pre-trial incarcerations should be justified depending upon the heinous nature of the offence, the punishments prescribed thereof, and an accused fleeing from justice hampering evidence and doing away with witnesses.  

In Siddharam Satingappa Mhetre v. State of Maharashtra^[1] the Supreme Court considered relevant factors for granting bail. The court said that there can be no straitjacket formula for assessing bail. It is impossible to design a method to asses whether a bail should be granted or refused. In no way can all future circumstances be envisioned in any procedure. For the purpose of granting bail under Section 438 of Criminal Code of Procedure 1973 careful and wise application of the judicial mind is necessary which is acquired through long training and experience of being a judge. 

The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. 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;
3. The possibility of the applicant to flee from justice;
4. The possibility of the accused’s likelihood to repeat similar or the other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
7. 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;
8. 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;
9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. 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.

Therefore, the court made considerations as regards to;

1. The petitioner had joined the investigation.
2. In the status report, there is no mention of previous criminal history of the bail petitioner.
3. The petitioner is permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured.
4. I am of the considered view that, prima facie, petitioner has made out a case for grant of bail.
5. The investigation is almost at the final stages of completion.

Thus bail under section 438 of the Criminal Code of Procedure 1973 bail is granted to the petitioner.

^[1] 2011 1 SCC 694