Very Cogent And Overwhelming Circumstances Are Necessary For Refusal Of Anticipatory Bail: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has reiterated that the purpose of Anticipatory Bail is to uphold the cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till he is proven to be guilty and can only be denied in exceptional or rare cases.
The Court was dealing with an anticipatory bail application filed by a person accused in a POCSO case, who was already on an interim pre-arrest bail.
The single- bench of Justice Mohd.Yousuf Wani observed, "It was held by the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharastra decided on 02/12/2010, AIR 2011 SC 312 that purpose of Anticipatory Bail is to uphold cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till he is proved to be guilty and that section 438 need not be invoked only in exceptional or rare cases. Discretion must be exercised on the basis of available material and facts of particular case. It has also been held in the said case that anticipatory bail cannot be granted for a limited period. Accused released on anticipatory bail cannot be compelled to surrender before trial court and again apply for regular bail. It is contrary to the spirit of section 438 and also amounts to deprivation of her personal liberty. Ordinarily, benefit of grant of anticipatory bail should continue till end of trial of that case unless bail is cancelled on fresh circumstances. That grant or refusal of bail should necessarily depend on facts and circumstances of the each case."
The petitioner was represented by Advocate Deepika Singh Rajawat while the respondent was represented by Advocate General Eishaan Dadhichi.
An FIR was registered against the petitioner for the commission of offences under Sections 354-C, 504, 509 IPC and 11(i)(iv) of the Protection of Children From Sexual Offences Act, 2012. The petition seeking quashment of the FIR on the ground that same is an outcome of frivolity and vengeance had been rejected.
The Court while considering the present application noted at the outset that it may be in the ends of justice in case the interim pre-arrest bail already granted in favour of the petitioner is made absolute, subject to some reasonable terms and conditions.
The Court cited Supreme Court rulings wherein the subject of anticipatory bail has been interpreted with a very wide outlook and while interpreting the concept of liberty guaranteed under Article 21 of the Constitution of our country in a flexible and broader sense such as in Siddharam Satlingappa Mhetre Vs. State of Maharastra, Sushila Aggarwal and others vs. State (NCT of Delhi) and Another to reaffirm that while interpreting the concept of liberty guaranteed under Article 21 of the Constitution of our country in a flexible and broader sense.
The Court went on to discuss factors and parameters that have been laid down for consideration while dealing with anticipatory bail. It also referenced from the recent Supreme Court judgement in Sushila Aggarwal and others vs. State (NCT of Delhi) and another wherein a larger bench of the Apex Court laid down the guiding principles for consideration of the pre-arrest bail applications.
The Court supplemented its opinion with the authoritative judgment of the Supreme Court in Lal Kamlandra Pratap Singh vs. State of UP (2009) in which the unnecessary arrests have been strongly condemned being violative of the right to liberty.
"Admittedly, while considering the anticipatory bail under section 482 of the BNSS, the court has to primarily satisfy itself regarding the conditions precedent for seeking such special relief and when such prior conditions are fulfilled, then the court has to consider all those principles and guiding rules which are necessary under law for consideration of a regular bail application," the court stated while mentioning the guiding principles that are being nowadays reiterated by the Hon’ble Apex Court and other High Courts of our country for the consideration of a bail application.
The Court also reiterated the trite that two paramount considerations viz: likelihood of accused fleeing from justice and his tampering with prosecution evidence relate to the ensuring of fair trial of the case in a court of justice, It is essential that due and proper weightage should be bestowed on these two factors apart from others.
"Bail or jail at the pre-trial or post conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judiciously with lively concern for the cost to the individual and the community. After all personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law (G. N. Nara Simhula vs. Public Prosecutor Andhra Pradesh AIR 1978 SC 429)," the court observed.
"Very cogent and overwhelming circumstances are necessary for an order seeking rejection of bail", the court added while stressing that it is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if punishment before trial is being imposed.
In the end, the court reaffirmed the settled legal position that mere gravity of offence and severity of punishment is no ground for rejection of bail application especially where there is no allegations that if released on bail, the accused is likely to abscond with a view to evade the trial and secondly where there is no material on record to show that in the event of bail, the accused is likely to tamper with the prosecution witnesses.
The application was accordingly allowed.
Cause Title: Mehmood Ur Rayaz Bhat vs UT of J&K
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