Honeypreet Insaan seeking bail in anticipation of arrest
The broad purpose of Section 438 Cr.PC is that where a person accused of commission of a non bailable offence is apprehending arrest, he may be afforded an opportunity to approach a High Court or a Court of Session for an appropriate order of bail before actual arrest. The two factors which entitle a person to seek shelter under Section 438 Cr.PC that firstly he must be under a reasonable apprehension of being arrested and secondly that such reasonable apprehension of arrest must arise on accusation of having committed a non bailable offence. Both these factors also determine the court in which an application under Section 438 Cr.PC can be filed.
Undoubtedly, anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to the person accused of serious offences and the Court must be cautious and circumspect in exercising such power of a discretionary nature.
While passing an order under Section 438 Cr.PC, the applicant may be released on bail in the event of his arrest. Such an order may be passed by the Court after considering the following factors:
i. the nature and gravity of the accusation;
ii. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
iii. the possibility of the applicant to flee from justice; and.
iv. where the accusation has been made with the object of injuring or humiliating the applicant by having him so
arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
It is needless to mention that grant of anticipatory bail under Section 438 Cr.PC is matter of a judicial discretion which have to be exercised on circumspection and the court has to satisfy that the application seeking bail has been made on bona fide grounds and there is no manipulation and maneuvering on the part of the applicant for artificially creating the jurisdiction for the court.
Whenever, an application for anticipatory bail is made before a Court, where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that Court, the Court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. If the Court is not satisfied on this aspect, the application deserves to be rejected without going into
the merits of the case.
A specific enquiry was made from the counsel for the applicant that if granted protection, whether the applicant would join investigation/surrender, which was answered in the negative. The counsel for the applicant stated that he only had instructions to argue the present application on merits and that he was seeking the protection of three weeks to approach the High Court of Punjab and Haryana for grant of anticipatory bail.
Noticing the above and keeping in view the facts and circumstances of the case that the applicant till now has evaded
arrest, discretionary relief should not be granted to the applicant. It appears that the application is not bona fide and has been filed with a view to gain time. The prayer of the counsel for the applicant that protection be granted to him so that he may approach the High Court of Punjab and Haryana, is without merit as the applicant had the liberty to avail the remedy before the competent Court.
[Source: Honeypreet vs. State Delhi HC dated September 26, 2017]
Moral of the story: You can’t get bail while playing hide and seek with Police.