2015 Supreme(Ori) 481

IN THE HIGH COURT OF ORISSA: CUTTACK
S.K. SAHOO. J.
BLAPL NO. 6216 OF 2014
(Date of Judgment : 04.02.2015)
In the matter of an application under Section 438 of the Code of Criminal Procedure.
Dr. Kalandi Ch. Mohanty … Petitioner
Versus
Union of India … Opp.Party

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec.438 - Pre-arrest bail - Commission of offences punishable u/s.420, 120-B, I.P.C. and Sec.13(2) r/w.13(1)(d) of P.C. Act, 1988 - Materials so far collected prima facie indicate that the petitioners along with others entered into criminal conspiracy and in pursuance to such conspiracy they have sanctioned and disbursed the loan of Rs.20 crores - Prima facie case is available against the petitioners - Prayer for anticipatory bail of petitioners stands rejected.

       2. ANTICIPATORY BAIL - While dealing with an application for grant of anticipatory bail in an economic offence, apart from the nature and gravity of the acquisation, the role played by the accused, the character of the accused, the antecedent of the accused, the possibility of the accused tampering with the witnesses or fleeing away from justice, likelihood of repetition of similar offences in future, reasonable possibility of securing the attendance of the accused at the time of trial are all to be seen with utmost care and caution and exceptional case has to be made out for grant of anticipatory bail particularly in economical offences.

       3. CRIMINAL PROCEDURE CODE,1973 - Sec.438 - Anticipatory bail - No inflexible guidelines or strait jacket formula can be provided for grant or refusal of anticipatory bail in as much as all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail - Grant or refusal of anticipatorty bail should necessarily depend on facts and circumstances of each case.

       122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

       i.The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

       ii.The antecedents of the applicant including the fact as to whether the accused has previously under tone imprisonment on conviction by a Court in respect of any cognizable offence;

       iii.The possibility of the applicant to flee from justice;

       iv.The possibility of the accused’s likelihood to repeat similar or the other offences.

       v.Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

       vi.Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

       vii.The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

       viii.While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and will investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

       ix.The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

       x.Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

       123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.

       124.The Court must carefully examined the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

       125.These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situation and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. Tthe legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior Courts. “ (Para - 5)