CHANDRAKANT CHANDULAL BHANSALI Vs. SHRIKANT SHRIKRISHNA JOSHI

JUDGEMENT

(1.) IS an order granting anticipatory bail to be equated with a regular bail order passed by a Criminal Court and, consequently, would the principles applicable to the cancellation of bail apply equally to both types of orders? This courts has, in the recent past, been flooded with applications presented by the State for cancellation of anticipatory bail orders, all of which proceed on the common ground that the direct consequences of the passing of the order has either seriously impeded or totally frustrated the investigation and damaged it, at times irretrievably. The second common head of challenge which, to my mind, is almost complementary to the first is that the timing of the order was wrong. A subsidiary grievance, but one in respect of which much can be said, is that anticipatory bail orders are, more often than not, passed ex-parte, without affording the prosecuting authority an opportunity of being heard. Be that as it may, once an order for anticipatory bail has been made in favour of an accused, it has become customary to contend that the salutary principles governing the cancellation of a bail order would operating accuseds favour and, therefore, that the order should not easily be disturbed. Precisely this controversy has arisen in the present proceeding before me. Having regard to the High degree of frequency with which these issues are debated before the courts, it would be essential to resolve the matter by defining the precise ambit and scope of the courts powers in matters relating to cancellation of anticipatory bail.

(2.) SECTION 438 of the Code of Criminal Procedure, 1973, (hereinafter referred to as "the Code") invests the High Court or the Court of Sessions with the powers to release a person who apprehends arrest, on bail. It is essential to bear in mind the purpose behind the introduction of this provision which was incorporated in the Code on the recommendation of the Law Commission. The Law Commission observed

(3.) INSTANCES abound where a skilled litigant planes to use the criminal machinery for purposes of humiliating, attacking or pressurising a person unfairly or, for that matter, seeking to use the custody process as an arena for vendetta. Taking cognizance of such situations, the Legislature has provided for relief to a person who is the victim of such schemes with the intention of preventing the damage and disgrace that could never be undone unless it is stopped in good time. In other words, anticipatory bail is the antidote for such situations of abuse, and these are to be distinguished from the normal run of criminal cases and litigation. It is true that anticipatory bail is also available to that small category of cases in which no useful purpose would be served by taking a person into custody, even for a short period of time. Certain class of offences relating to documents or relatively minor cases could be listed under this head where it would be reasonable to hold that the exercise of formally putting the accused behind bars and then releasing on bail could be dispensed with. That section 438 of the Code confers a special power and one which is of restrictive scope and, therefore, to be used sparingly, requires emphasis.