Anticipatory Bail Application Becomes Infructuous And Is Not To Be Decided On Merits When Accused Is Arrested During Its Pendency: SC

The Supreme Court has recently observed that once an accused (herein the petitioner) is arrested during the pendency of the anticipatory bail application, such an application became infructuous and does not require to be decided on merits.

In the pertinent matter, the de-facto complainant on caveat submitted that during the pendency of the petition for anticipatory bail before the High Court, the petitioner was arrested on August 16, 2023 but was released by the High Court on interim bail on the same date to perform the marriage of his daughter scheduled to be solemnised on August 21, 2023. The petitioner was then directed to surrender before the Police on August 28, 2023. However, the petitioner did not surrender and later on his application for anticipatory bail has been dismissed by the High Court.

Accordingly, a bench comprising Justice Surya Kant and Justice Dipankar Datta further observed, “The only recourse for the petitioner would, thus, be to surrender before the Police and thereafter apply for regular bail. The petitioner is directed to follow such a recourse. It is clarified that if the petitioner surrenders and applies for regular bail, the said application shall be considered as per its own merits without being influenced by the impugned order passed by the High Court rejecting his application for anticipatory bail”.

AOR A. Lakshminarayanan appeared for the petitioner and Advocate Beno Bencigar appeared for the respondent.

In the present matter, the petitioner was alleged for the offences punishable under sections 294(b) and 306 IPC and had sought anticipatory bail before the High Court. As per the facts of the case the petitioner had an extra martial affair with the deceased’s wife. The father (also the de facto complainant herein) of the deceased had alleged that his son was instigated to commit suicide by his wife and her parents.

Now the petitioner argued that he was not present in the place of occurrence and there were issues between the husband (deceased) and wife, for which, he has been wrongly included or implicated. Therefore, since he was not present at the place of occurrence, he cannot be held responsible for the said unfortunate event of commission of suicide.

Observing the facts and circumstances, the High Court in the impugned order had thus observed that, “No doubt that on the particular date of the occurrence, when the deceased was insulted and humiliated by his wife, this petitioner was not present. But the offence under section 306 IPC does not rest alone on the point of presence of a particular person. The accused need not be present in the place of occurrence. He did not also have any conversation with the deceased. But when he is responsible for creating circumstances, which drove person to commit suicide, then he will be held criminally liable”.

Therefore, the question that the High Court adjudicated upon was, whether the petitioner created circumstances by having extra marital affair with the wife of the deceased is the only matter, which arises for consideration by the Investigating Officer. “…by considering the anticipatory bail only, the gravity of the offence will be decided in the above said cases. As mentioned above, the only point for consideration is, as noted above, whether he created circumstances”, the bench while dismissing the application had further observed in the impugned order.

Accordingly, while disposing of the Special Leave Petition the Apex Court observed, “In our considered view, once the petitioner had been arrested during the pendency of the anticipatory bail application, such an application became infructuous and was not required to be decided on merits”.

Cause Title: M. Senthil @ Senthil Kumar v. The State Of Tamil Nadu

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