The Supreme Court on Friday said protection from arrest should not be granted to accused while dismissing their plea for anticipatory bail at the same time, as they would roam freely without being apprehensive of coercive action.
A bench of Chief Justice N.V. Ramana and Justices Surya Kant and Aniruddha Bose said the court’s discretionary powers to grant anticipatory bail “cannot be exercised in an untrammeled manner”.
The top court made it clear that if protection is granted while denying anticipatory bail then, such an order must necessarily be “narrowly tailored” to protect the interests of the applicant while taking into consideration the concerns of the investigating authority.
Cautioning the lower courts on this aspect, the top court said such directions, where protection from arrested is granted while denying pre-arrest bail, exceeds judicial discretion and amounts to “judicial largesse”, which the courts do not possess.
The top court set aside two orders passed by the Allahabad High Court, dismissing the plea of pre-arrest bail by the accused but granting protection from arrest for 90 days. “The resultant effect of the High Court’s orders is that neither are the respondents found entitled to pre-arrest bail, nor can they be arrested for a long duration.. We are thus of the view that the High Court committed a grave error in passing such protection to the respondents accused,” it said.
It stressed that if protection is granted to the accused, then such an order “must necessarily be narrowly-tailored to protect the interests of the applicant while taking into consideration the concerns of the society at large, and the investigating authority”. “Such an order must be a reasoned one,” it noted.
The bench added that the High Court, giving the relief of 90 days, had not considered the concerns of the investigating agency, the complainant, or the proviso under Section 438(1), Cr.P.C., which necessitates that the court passes such an exceptional discretionary protection order for the shortest duration that is reasonably required.
However, it observed the High Court can give protection to the accused in certain extraordinary circumstances, even though the investigating agency has made out a case for arrest.
