The Supreme Court has held that the sessions court and the High Court can grant anticipatory bail to an accused under Section 438 of the Criminal Procedure Code at any time so long as he/she had not been arrested in respect of the offence concerned.

A Bench of Justice Tarun Chatterjee and Justice S.S. Nijjar said: “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 — ‘as the challan had been presented anticipatory bail cannot be granted.’”

Assess merits

The Bench said: “The merits of the issues shall have to be assessed at the time of the trial of the accused persons 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 the provision for anticipatory bail was introduced on the recommendations of the Law Commission of India in its 41st Report dated September 24, 1969. These recommendations were considered by a Constitution Bench of this court and statutory principles were laid down on grant of anticipatory bail.

When the anticipatory bail application is made to the sessions court or the High Court, it must apply its own mind on the question and decide whether a case had been made out for granting such relief. The High Court is 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, the appellant, 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 anticipatory bail plea on three occasions. The present appeal is directed against this order.

“Erroneous judgment”

Allowing the appeal, the Bench said: “We are of the considered opinion that 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.

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