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

New Delhi: 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.