📖 Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

Facts: An order granting bail was set aside by the High Court, and the question was what considerations govern the grant of bail in a non-bailable offence, and when a higher court may interfere with an order already made.

Held: The Supreme Court set out the matters a Court is to consider on an application for bail: whether there is any prima facie or reasonable ground to believe that the accused committed the offence; the nature and gravity of the accusation; the severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released; the character, behaviour, means, position and standing of the accused; the likelihood of the offence being repeated; the reasonable apprehension of the witnesses being influenced; and the danger of justice being thwarted by the grant of bail. The Court held that these are not exhaustive but are the considerations which ordinarily arise. On interference, it held that a higher court does not ordinarily substitute its own view for that of the court which granted bail: it interferes where the order is perverse, where it records no reasons, or where relevant considerations have been ignored — but not merely because a different view is possible.

Ratio: The Court weighs the prima facie ground, the nature and gravity of the accusation, the severity of the punishment, the danger of absconding, the character of the accused, the likelihood of repetition and the risk to witnesses. A higher court interferes only where the order is perverse or unreasoned.

📖 Savitri Agarwal v. State of Maharashtra, (2009) 8 SCC 325

Facts: An application for anticipatory bail was granted, and the State challenged the order on the footing that the applicant had shown no more than a general apprehension of arrest and that the Court had not applied the considerations the provision requires.

Held: The Supreme Court held that the belief that the applicant may be arrested must be founded on reasonable grounds, and that mere fear is not belief: the applicant must show that he has reason to believe he may be arrested for a non-bailable offence, and the grounds on which that belief rests must be capable of being examined by the Court objectively. It held that vague and general allegations, as though to be maltreated at the hands of somebody, cannot be a ground for an order under the section — the applicant must place concrete facts before the Court. The Court held that an order of anticipatory bail should not be passed as a matter of course, and that where the Court decides to grant it, it must consider the nature and gravity of the accusation, the antecedents, the possibility of the applicant fleeing from justice, and whether the accusation appears to have been made to injure or humiliate him by having him arrested.

Ratio: The belief that the applicant may be arrested must be founded on reasonable grounds capable of objective examination; mere fear is not belief. Vague and general allegations are no ground, and the applicant must place concrete facts before the Court.

⚠ A refusal of one is not a refusal of the other

A refusal of anticipatory bail is not a refusal of regular bail, and does not prejudice the later application.

The two are decided on different material at different stages — the first on an apprehension, before any custody; the second on the material as it stands once he is in custody, often after the investigation has advanced.

A court hearing the regular application is therefore not bound by what was said on the earlier one, and should not treat the refusal as concluding anything against the applicant.

And the converse holds too: a grant of anticipatory bail does not entitle him to regular bail should he later be taken into custody on a different footing — that falls to be decided afresh.

The position stated shortly

1. For regular bail it must be pleaded that he is in custody; for anticipatory bail, a reason to believe founded on concrete facts.

2. Regular bail may be sought before a Magistrate, Court of Session or High Court; anticipatory bail before the Court of Session or High Court only.

3. The Court weighs the prima facie ground, the nature and gravity of the accusation, the severity of the punishment, the danger of absconding, the character of the accused, the likelihood of repetition and the risk to witnesses: Prasanta Kumar Sarkar.

4. A higher court interferes with an order granting bail only where it is perverse, unreasoned, or ignores relevant considerations — not because a different view is possible.

5. On anticipatory bail, mere fear is not belief: the applicant must place concrete facts before the Court, and vague and general allegations are no ground: Savitri Agarwal.

6. An order of anticipatory bail ordinarily enures without a time limit, and does not lapse on summons or on the filing of the charge sheet.

7. Section 482(3): on arrest the direction converts into an actual release, at the hands of the officer.

8. A person protected by anticipatory bail is not in custody, so an application by him for regular bail is not maintainable.

9. Where anticipatory bail is refused, the course is to surrender and apply for regular bail — surrender and submission to the Court’s directions being custody for that purpose.

10. A refusal of anticipatory bail is not a refusal of regular bail, and a court hearing the later application is not bound by what was said on the earlier one.