HYDERABAD: Courts, the High Court or a sessions court in particular, will exercise their power under Section 438 of CrPC (for grant of pre-arrest bail) in exceptional circumstances only after being satisfied that there is no prima facie material to conclude that the accused committed the offence.
Anyone apprehending arrest on the charge of a non-bailable offence may move the High Court or a sessions court for a direction that in the event of arrest he shall be released on bail. It is only upon arrest that an order granting ‘anticipatory bail’ becomes operational.
The court, if it thinks fit, will issue directions for grant of bail to the person apprehending arrest under Section 438 of CrPC by taking into consideration factors such as: 1) nature and gravity of accusation; 2) antecedents of applicant, whether he was jailed in the past for any cognizable offence; 3) possibility of applicant fleeing justice; and 4) if the accusation was made to humiliate the applicant by having him arrested. If the court has not passed any interim order under this section or rejected the application for anticipatory bail, it shall be open to the officer in charge of police station to arrest, without warrant, the applicant.
In a case before the Hyderabad High Court, the petitioner sought cancellation of an order passed by a sessions court in the city granting anticipatory bail to a man accused charged with offences punishable under Sections 420, 468, 471 and 120-B of IPC. He had earlier lodged a police complaint making serious allegations of fabrication of land documents against the respondent-accused.
Suppressing the facts about filing of quash petition, writ petition and bail applications before the lower court and the High Court, the respondent accused filed an application before the sessions court for grant of pre-arrest bail though there were no changed circumstances. The sessions judge, who was in charge for a day or two, granted pre-arrest bail. The petitioner urged the High Court to set aside grant of pre-arrest bail.
The petitioner’s counsel said that a major part of the investigation was completed and the statements recorded during the probe disclosed that the accused had committed serious offences and some of the accused were remanded in judicial custody. He said the accused was the brain behind fabrication of land documents and forging of signatures of the actual landlords prior to entering into an agreement of sale. Without considering the material on record and the criminal antecedents, the in-charge sessions judge granted pre-arrest bail to the accused.
The in-charge sessions judge did not record any such finding that there was no prima facie material against the accused to conclude that he committed any offence, he said. On the other hand, the counsel for the accused contended that the pre-arrest bail was granted in the absence of any allegation of interference by the accused in the investigation.
Justice M Satyanarayana Murthy said the grant of pre-arrest bail after the dismissal of an application when there were no major changed circumstances in the investigation was a grave illegality.
The law consistently laid down by the apex court and other courts is that if there are major changed circumstances in investigation, subsequent to dismissal of an earlier bail application, the court can entertain application for bail, consider it and decide afresh. Merely on the ground that an earlier application was dismissed can the court not straightaway dismiss a fresh bail application, he said.
The judge said it is the duty of the public prosecutor to bring to the notice of the court the earlier bail application filed by the same accused and about any application filed by the co-accused in the same crime, and the result thereof.
The judge allowed the petition by setting aside the order of the sessions court. He, however, granted liberty to the respondent accused to renew his request before a competent court which should consider bail application in accordance with law.