When False / malicious complaint / FIR is alleged to have been registered / or is anticipated that such false / frivolous complaint / FIR may be registered by any person, the aggrieved person may apply for Anticipatory Bail before the Sessions Court / High Court
When False / malicious complaint / FIR is alleged to have been registered / or is anticipated that such false / frivolous complaint / FIR may be registered by any person, the aggrieved person may apply for Anticipatory Bail before the Sessions Court / High Court.
1. Anticipatory Bail implies seeking Bail from Courts, in anticipation of an accusation and consequent arrest.
2. The personal liberty of the person is secured by obtaining “Bail” in the form of, either furnishing “surety” or by “depositing of certain cash amount” in lieu of Surety, or by “executing a Personal Release Bond”, before the Court / Officer In-Charge of the Police station, thereby securing to the Court / Police that the person seeking the release, would make himself present during the trial of the offence for which he is alleged to have committed.
3. Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may by making Application before High Court or the Court of Sessions, that in the event of such arrest he shall be released on bail.
4. Where the High Court or the Court of Session grants anticipatory Bail, it may include such conditions, as it may thinks fit, including – (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
5. The Apex Court in the case of SiddhramMhetre versus State of Maharashtra [(2011] said – Para 122: The following factors and parameters can be taken into consideration while dealing with the anticipatory bail :
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 6. Registration of Complaint / FIR against the person applying for anticipatory Bail, is not necessary. A person may apply for anticipatory Bail even on the anticipation of registration of offence against him / her; or there may be situations where the Applicant may not be aware if any offence is registered against him, and the offence may have been registered against him.
The Hon’ble Apex Court and High Courts, have time and again, disapproved the practice of mechanical arrests being effected by the Police officers on the mere registration of FIR. Your attention is invited to two Apex Court rulings, which expressly dealt with the issue of Personal Liberty and powers of Police to arrest.
Arnesh Kumar Ruling: [AIR 2014 SC 2756]
The observations Para 7: Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence. It is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
Para 8: ….In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.
In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
Para 12: The direction of Apex Court:
a) Police officers not to automatically arrest when a case is registered (for an offence punishable with imprisonment which may extent upto seven years) but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii). The check list is set out hereinafter.
c) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
d) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
e) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Check – List of Section 41(1)(b)(ii) the police officer is satisfied that such arrest is necessary a) to prevent such person from committing any further offence; or b) for proper investigation of the offence; or c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
Further, the most remarkable observations in the above case deserves to be reproduced – Para 12: We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce.”
Joginder Kumar Versus State Of Uttar Pradesh [AIR 1994 SC 1349]
Observations: Para 24: No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so.
No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.
There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.
Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do.
Directions: The SC said …An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
THIS RULING WILL BE APPLICABLE IN ALL CASES OF ARRESTS, WHETHER OR NOT PROVISIONS OF CrPC ARE APPLICABLE OR NOT.
Jurisdiction of Courts:
The power to grant anticipatory Bail lies with Sessions and High Courts. The Sessions Court / High Court of the place where the offence is registered (if it is registered), or the Sessions Court / High Court of the place where the aggrieved person resides, would have the jurisdiction to entertain Anticipatory Bail Application. It is desirable to first approach the Sessions Court; and if the relief is denied, then, High Court may be approached, although there is no bar as to directly approaching High Court.
No adverse Order if No adverse findings
1. It is typical for Courts and Judges, whilst passing Orders and decisions, (to commit basic and elementary mistakes, and most of the times consciously) outright overlooking some of the very material facts and evidences / submissions / Judgments cited, by the losing Party; and drive themselves to irrelevant consideration of facts.
2. Before discussing the aforesaid expression “No adverse Order if No adverse findings”, let us first broadly look at the decision making process.
3. Broadly, the decision making is a process wherein, having regard to the Reliefs claimed, the presiding Judge – (a) examine the (legality) of facts alleged, (b) examine the (legality) of stand of the adversary, (c) examine the materials and the evidences which are placed before him in support of the facts alleged by both the sides; (d) would record his reasoned finding (prima facie or conclusive) as to the existence or the non existence of the facts alleged.
4. The process of recording finding of facts is, having regard to the applicable laws and precedents, testing of facts and evidences, and drawing natural, logical and legal inferences and outcomes, which necessarily flows from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved]. Appreciation of facts and evidence is also an exercise wherein the existence of certain facts and evidence, provokes or persuades the decision maker to reach a certain conclusion.
5. Once findings as to facts are arrived at, the decision follows, either granting the reliefs claimed for, or the denial of.
6. However, what is witnessed in many Orders of the Courts is – either (a) In the process of finding of facts, findings on significant material fact are not recorded at all, by overlooking all the materials and evidences and submissions of the losing party, which are placed on record; the evidences and submissions, which had a direct bearing on the decision of the Court; or (b) whilst recording finding as to material fact, some of the material facts agitated / evidences / submissions / Judgments cited are not dealt with. The situation (a) mainly occurs in discretionary jurisdiction Orders/ Interim /Ad-Interim Orders / and Orders passed at Appellate stage; and situation (b) occurs in Orders passed in original proceedings. [Material facts would mean such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed]
7. In wealth of judgments, the Apex Court and High Courts have insisted upon recording of reasons whilst arriving at findings of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have observed to say that Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning, on law and facts.
8. Therefore, IF it is contempt of the Court, if reasoned findings are not recorded, then it is regressive and aggravated contempt, to not to record findings at all.
9. Can we really compel the Courts to record finding of fact in their decisions? At least the Apex Court in a case before it [(2006) 9 SCC 222], have said Yes. The Apex Court have held that before subjecting a party to the adverse decision, adverse findings must be recorded against it.
The Apex Court in the aforesaid case, have set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.
It was a case where the Defendant in a Suit gave undertaking to the trial Court that Defendants will not interfere with the possession of the Plaintiff’s land. The Suit was disposed of on the basis of above undertaking. Thereafter, the Plaintiff moved Execution Application under O.21 R.32 before the trial Court alleging that Defendants have constructed some structure on the Suit land. The trial Court dismissed said Execution Application. The Plaintiff challenged trial Court’s Order before High Court. The High Court directed the Defendants to clear the encroachment effected by them on the suit land. In this backdrop, the Apex Court set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.
10. The Illustration: To illustrate the proposition of “Findings”, agitated hereinabove, therefore, in a Writ Petition, the High Court, before refusing to exercise its writ jurisdiction on the grounds of availability of alternate remedy, and depending upon the nature of facts alleged, must record a prima facie finding that, having regard to the facts on record, (a) fundamental rights of the Petitioners are not infringed; and / or (b) principles of natural justice have not been infringed; or (c) the Authority / Subordinate court / Tribunals have acted within their respective jurisdiction. This is because, there are ample judgments of Apex Court, wherein it is held that, on the existence of any of the aforesaid grounds in the case, notwithstanding availability of alternative remedy, the High Courts must exercise their Writ Jurisdiction under Article 226 of the Constitution of India. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)]
Similarly, in an Application for Anticipatory Bail, the Session Judge / High Court, before rejecting Anticipatory Bail must record a prima facie finding that, having regard to the facts on record, (a) the Applicant is not cooperating in the investigation; (b) custodial interrogation of the Accused is essential; or (c) There is a apprehension of tampering of the witness by the Applicant; or (d) There is a possibility of the Applicant to flee from justice; or that there is a possibility of the Accused's likelihood to repeat similar or the other offences.
11. The necessity of recording of finding on material facts, would take away the arbitrary and whimsical discretion of the Courts, for, they have to record findings, based on facts and evidences which are explicitly placed on record. And when the facts / evidence are seen large, the Courts may abstain from recording illogical findings, which are contrary to facts / evidence placed on record, and seen large.
This is how the captioned proposition should come into play, that is, “No adverse Order if No adverse findings”.
The concentrated view which emerges runs to the effect that every decision / Order of the court, be interim or final, must be based on findings of facts recorded by it, whether prima facie or conclusive, on such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed.
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