The Supreme Court has held that the sessions court and the High Court can grant anticipatory bail under Section 438 of the Criminal Procedure Code anytime so long as the accused has not been arrested for an offence. “The salutary provision contained in Section 438 Cr. PC was introduced to enable the court to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities [saying] ‘as the challan had been presented, anticipatory bail cannot be granted’,” said a Bench of Justices Tarun Chatterjee and S.S. Nijjar.
“The merits of the issues shall have to be assessed at the time of the trial of the accused and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr. PC.”
Writing the judgment, Mr. Justice Nijjar said that when an application was made to the sessions court or the High Court, it must apply its mind to the question and decide whether a case had been made out for granting anticipatory bail. The High Court was required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail “if it thinks it fit.”
In the instant case, Ravindra Saxena sought anticipatory bail in a case of cheating and forgery. A sessions court in Rajasthan rejected his plea. The Rajasthan High Court also dismissed his plea on three occasions.
Allowing the appeal against this order, the Bench said: “The approach adopted by the High Court is wholly erroneous. The application for anticipatory bail has been rejected, without considering the case of the appellant, solely on the ground that the challan has been presented. In our opinion, the High Court committed a serious error of law in not applying its mind to the facts and circumstances of this case.”
The Bench granted bail to the appellant in the event of his arrest.