Supreme Court has laid down a settled ratio on anticipatory bail that the the exercise of discretion of the courts , while granting anticpatory bail , shall be on the basis of the facts , allegations ,circumstances ,the conduct of the applicant , status of the investigation etc .
It is trite law that bail is law and jail is an exception . But the Courts of law has to exercise the discretion in cautious & meticolous manner so that personal liberty of ane applicant is not at stake .
In Gurbaksh Singh (supra), the Constitution Bench of this Court, while laying down the guidelines relating to grant of anticipatory bail, has observed in paragraph 14 as under: –
14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges…….”
It was also held that
Section 438 Cr.P.C. is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The Constitution Bench’s relevant observations are set out as under: "……..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail
In Siddharam Satlingappa Mhetre v. State of Maharashtra and others , in sub-para (viii) of para 112, the Supreme Court has held as under: –
(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 full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
In Bhadresh Bipinbhai Sheth v. State of Gujarat and another , laying down the principles regarding cancellation of anticipatory bail in sub paras (vi) and (ix) of para 23, this Court has observed as under: –
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.”
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(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
It is also held in catena of decisions that the relief of anticipatory bail cannot be said to be barred merely for the reason that the allegations relate to economic offences or corruption, has clarified that where the allegations are malafide, the prayer for anticipatory bail can be accepted.