The Code of Criminal Procedure, 1898 (V of 1898); section 498 

Anticipatory bail

Anticipatory bail is obviously an extra­ordinary measure in that ordinarily an accused is required to pray bail from the lowest ladder of the Criminal Court with jurisdiction. In fact that is what the relevant legal scheme contemplates. When an accused invokes section 498 to use the High Court Division as the first forum to seek bail, he jumps all the Criminal Courts below. While there is nothing to step the High Court Division from enlarging an accused on anticipato­ry bail, the proposition that discretion to enlarge accused persons on anticipatory bail must be exer­cised sparingly in exceptionally deserving cases, is supported by unbroken chain of authorities of high preponderance, not only because by assuming this power, the High Court Division in a sense destabilises the normal pattern and usurp the discretion meant to be set apart for the lower courts, but also because it is the courts at the lowest stra­ta that can deal with the matter with greater preci­sion as it would normally have the relevant papers before it. Converting the High Court Division into a Magistrate's Court is least desired……………..(14)

Pre-arrest bail is an extra­ordinary remedy, an exception to the general law of bail, can be granted only in extra-ordinary and exceptional circumstances upon proper and intel­ligible exercise of discretion. The allegations that the case is false or that the same has been initiated out of political rivalry or the omnibus allegation that the Magistrates and lower court Judges are controlled by the govern­ment, cannot, by themselves ground for anticipa­tory bail. Such a bail prayer can be considered when it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by busing the process of law, such as harassment, humiliation etc. of the accused which cannot be permitted. Ordinarily when a person is want­ed in connection with a non-bailable offence of grave nature, he is not entitled to anticipatory bail. All persons charged with non-bailable offences must be treated equally, unless of course there are special circumstances which need special consid­eration.………………………….(17-20)

Cri­teria to be followed by the High Court Division while disposing of anticipatory bail applications-

(a) To open the jurisdictional door they shall satisfy themselves that reasons for apprehension have specifically, explicitly, plausibly, credibly and with sufficient clarity been assigned, instead of relying on any gen­eralised pretension. That must be treated as the precursor. 

A metaphorical avowal that the Magis­tracy/lower judiciary is controlled by the execu­tive should not be treated as specific because Magistrates/lower Court/tribunal Judges do no longer dwel in the realm governed by the execu­tive. If allegation of bias is aired against a partic­ular or a group of Magistrates/Judges, cause of suspicion must be specifically spelt out. The Judges concerned, shall give reasons for their sat­isfaction on this unraveling point.

(b) Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application.

(c) Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division’s intervention for even the Magistrates/lower court/tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases.

(d) Effect of the accused's freedom on the investigation process must not be allowed to float on obfuscation.

(f) The High Court Division must scruti­nise the text in the FIR with expected dili­gence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature. Claim that the allegations are cooked up shall also not be adjudged at that of point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are framed or genuine can only be determined through investigation and sifting of evidence.

(g) Interest of the victim in particular and the society at large must be taken into account in weighing respective rights.

(h) If satisfied in all respects, the High Court Division shall dispose of the applica­tion instantaneously by enlarging the accused on a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's antici­patory bail order. Anticipatory bails shall not survive post charge-sheet stage…………………………….(23) 

An appeal from a preliminary decree is not incompetent even if a final decree is made before the appeal is presented. Nor is it necessary for a party aggrieved by a preliminary decree to appeal both from that decree and against the final decree in order to maintain this appeal against the preliminary decree……………………..(11)

When no appeal is preferred against the final decree and only the preliminary decree is appealed against but a copy of the final decree has been placed on the record of the appeal it is the duty of the appellate Court in dealing with the appeal to give necessary and consequential directions regarding the final decree……………..(12) 

The Code of Criminal Procedure, 1898 (Act No. V of 1898); section 561A

Inherent powers of the High Court Division

The inherent powers of the High Court Division is neither an alternative nor an additional in its correct sense and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available. This sec­tion confers no new powers on the High Court Division. It merely safeguards all existing inherent powers possessed by the High Court Division to secure the ends of justice. The sec­tion provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had sur­vived the passing of the Code. This provision should not be used to obstruct or divert the ordinary course of justice. The power under this section is a special extraordinary one, the main aim and object of which is to save the peo­ple from any agony of the abuse of the process of the Court and also is designed to do substan­tial justice.........................(4)

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