Reasoned order must for granting protection from arrest while rejecting anticipatory bail: SC

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New Delhi, May 28 (PTI) Courts must come out with reasoned order for granting protection from arrest to a person while rejecting the application for anticipatory bail, said the Supreme Court on Friday.

The apex court said when such orders are passed, courts must balance the concerns of investigating agency, complainant and the society at large as grant or rejection of an application seeking bail for a person apprehending arrest has a direct bearing on the fundamental right to life and liberty of an individual.

A bench comprising Chief Justice N V Ramana and Justices Surya Kant and Aniruddha Bose, made the observation in its judgement on two separate pleas challenging the orders passed by the Allahabad High Court which had dismissed the anticipatory bail pleas of accused in two cases but granted them protection from coercive action for 90 days to surrender before the trial court to seek regular bail.

“We cannot be oblivious to the circumstances that courts are faced with day in and day out, while dealing with anticipatory bail applications. Even when the court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the high court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the trial court,” the top court said in its 18-age verdict.

“In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the high court has no power to ensure justice,” the bench said.

It noted that the apex court may also exercise its powers under Article 142 of the Constitution to pass such an order.

“However, such discretionary power cannot be exercised in an untrammeled manner. The court must take into account the statutory scheme under section 438 CrPC, particularly, the proviso to section 438(1) CrPC, and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant,” it said.

Section 438 of the Code of Criminal Procedure (CrPC) deals with direction for grant of bail to an individual apprehending arrest.

The bench said such an order must necessarily be “narrowly tailored” to protect the interests of the applicant while taking into consideration the concerns of the investigating authority.

“Such an order must be a reasoned one,” it said.

The bench said any interpretation of the provisions of section 438 CrPC has to take into consideration the fact that the grant or rejection of an application seeking anticipatory bail has a direct bearing on the fundamental right to life and liberty of an individual.

“The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the courts must not read in limitations or restrictions that the legislature have not explicitly provided for,” it said.

The bench noted that any ambiguity in the language must be resolved in favour of the applicant seeking relief.

It said that section 482 of the CrPC explicitly recognizes the high court’s inherent power to pass orders to secure the ends of justice.

“This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future,” it said.

The top court set aside the orders passed by the Allahabad High Court saying it had granted the relief without assigning any reasons and a period of 90 days cannot in any way be considered to be a reasonable one in the present facts and circumstances.

“We are thus of the view that the high court committed a grave error in passing such protection to the respondents­-accused. Such a direction by the high court exceeds its judicial discretion and amounts to judicial largesse, which the courts do not possess,” it said.

The bench allowed the appeals filed against the orders passed by the high court on January 28 this year and February 8 this year. PTI ABA MNL SJK ABA RKS RKS

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