IMPORTANT POINT
Anticipatory bail - principles regarding.

JUDGMENT

P. Sathasivam, J.-Leave granted.

2. This appeal is filed against the final order dated 05.12.2011 passed by the High Court of Delhi at New Delhi in Anticipatory Bail Application No. 1602 of 2011 whereby the High Court dismissed the application filed by the appellant herein.

3. Brief facts:

(a) The appellant herein is the elder brother of the husband of the deceased - Vibha. The appellant is engaged in the business of cutting of diamonds and getting them manufactured as per the specifications of his clients. He is married for the last seven years and has two children. According to him, he resides with his wife and children in the separate portion of the house in Paschim Puri, New Delhi whereas one portion is occupied by his parents and one by his younger brother.

(b) On 19.01.2010, younger brother of the appellant got married to Vibha (since deceased). He lived with his wife on the first floor of the same house. On 01.09.2011, Vibha, committed suicide. On the same day, the mother of the deceased lodged a complaint against the family members of the husband of the deceased with the Police Station at Punjabi Bagh, New Delhi.

(c) On the basis of the complaint, an FIR was registered vide No. 259/11 at Punjabi Bagh Police Station. On the same day, the husband and mother-in- law of the deceased were arrested. The appellant herein moved an application for anticipatory bail. The Additional Sessions Judge, Delhi, by order dated 05.11.2011, dismissed the said application.

(d) Against the said order, the appellant moved an application for anticipatory bail before the High Court. By the impugned order dated 05.12.2011, the High Court dismissed the said application. Aggrieved by the said order of the High Court, the appellant preferred this appeal by way of special leave petition.

4. Heard Dr. Sarbjit Sharma, learned counsel for the appellant and Mr. Sidharth Luthra, learned Additional Solicitor General for the respondent- State.

5. The only point for consideration in this appeal is whether the appellant, who is elder brother of the husband of the deceased, has made out a case for anticipatory bail in terms of Section 438 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”)?

6. Before considering the claim of the appellant, it is useful to refer Section 438 of the Code relating to grant of bail to a person who is apprehending arrest which reads as under:

“438. Direction for grant of bail to person apprehending arrest –

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(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:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. …….”

It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail. The belief that