The Supreme Court has in a judgment said that bail may be the rule in many cases, but anticipatory bail is certainly not the norm.
A Bench of Justices C.T. Ravikumar and Sanjay Kumar said the power of the courts to grant anticipatory or pre-arrest bail is an extraordinary one, and not to be given for the asking.
“Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion of the court, depending on the facts and circumstances of each case,” the top court said in a recent judgment.
The judgment was based on an appeal for anticipatory bail filed by persons booked under several provisions of the Indian Penal Code for offences, including assault of a woman, wrongful restraint, causing grievous hurt, and the provisions of the Prevention of Witch (Daain) Practices Act, 1999 in Bihar. The Patna High Court had refused their plea for pre-arrest bail.
Confirming the decision of the High Court, the apex court observed that anticipatory bail should not lead to miscarriage of justice, especially in cases of serious crimes against women.
“The court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence,” Justice Ravikumar, who authored the verdict, cautioned.
Justice Ravikumar clarified that this judgment did not intend to say that anticipatory bail ought not to be granted in deserving cases. Anticipatory bail was indeed an interim protection meant to safeguard personal liberty against unwarranted arrest or state excess.
However, the court said the relief of interim protection should be given by courts not in all and sundry cases, but only in “extremely fit cases” or “extreme, exceptional cases in the interest of justice”.
In the present case, the Bench noted that the two accused had ignored court summons multiple times in the past.
“They failed to appear before the trial court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accused, after the issuance of bailable warrants, applied and obtained regular bail,” the court noted, refusing them relief.
The incident in the case dates back to February 2020 when a group of men accused a woman of being a witch and of casting a spell on one of their children in East Champaran district of Bihar. She was assaulted, made to eat dung, and her clothes were torn off.
