Use this power under Section 438 Cr.PC in exceptional cases
Section 438 can be used to secure an individual’s liberty
It cannot be invoked after arrest
New Delhi: The Supreme Court has cautioned sessions and High Courts against giving blanket protection to the accused while granting anticipatory bail in sensitive and heinous cases.
“Normally a direction should not be issued to the effect that the applicant shall be released on bail ‘whenever arrested for whichever offence whatsoever.’ Such a ‘blanket order’ should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity,” said a Bench comprising Justices Arijit Pasayat and Lokeshwar Singh Panta.
Dealing with the scope of Section 438 of the Criminal Procedure Code (the power to grant anticipatory bail by the court of sessions and High Courts), the Bench said this power was somewhat extraordinary. “Only in exceptional cases, where it appears that a person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to misuse his liberty, the power is to be exercised under Section 438.”
Writing the judgment for the Bench, Mr. Justice Pasayat said, “An order under Section 438 is a device to secure an individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.”
The Bench said the ground on which the belief of an accused was based — that he might be arrested for a non-bailable offence — must be “capable of being examined.” Each case had to be evaluated according to the material on record to find out whether a case for grant of relief was made out or not.
Section 438 could not be invoked by the court once an accused was arrested. If the accused was not arrested, the blanket order of protection should not be generally passed in pre-arrest bail. “It flows from the very language of the Section, which requires the applicant to show that he has reason to believe that he may be arrested. Courts have to evaluate the cases carefully to make a distinction between a genuine apprehension of arrest based on facts in the case and a mere claim of such apprehension, having in fact no basis for it.”
The Bench was disposing of an appeal from Naresh Kumar Yadav of Bihar against an order of the Patna High Court granting interim protection against arrest to three persons accused in a criminal case. Cautioning the prosecuting agency against making available to the accused notes in the case diary, it said that legally the accused could not have access to such notes at the time of seeking bail. “The courts should take serious note when the accused or the informant refers to the case diary to buttress a stand.”