POKAR RAM versus STATE OF RAJASTHAN AND ANR

Citation: [1985] 3 S.C.R. 780 · Decided: 17-04-1985 · Supreme Court of India · Bench: V.D. TULZAPURKAR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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POKAR RAM 
v. 
STATE OF RAJASTHAN AND ANR 
April 17, 1985. 
[V. D. TULZAPURKAR, D.A. DESAI AND A.P. StN, JJ.] 
Cri1nina/ Procedure Code 197 3, s.438-Anticipatory bail-Grant of-When 
arises. 
The son of the appellant, was injured by a fire arm 011. August 23, 1983 
at 4 p. m. The F.I.R. wa5 lodged on the next day at 11.30 a.m. In clear and 
unambiguous terms it alleged that the respondent was at the relevant time armed 
with a gun and fired at the appellant's son, who suffered injuries by gun shot. 
Since he was alive at that time, a ca5e under ss. 307,447 read with s. 149 and 
under ss. 148, 379 and 827 of the 1.V.C. was registered. When he succumbed to 
injuries, an offcn<.c ur.dcr s.302 J.P.C. \\.<:~ al~o ndded. 
·The respondent was not arrested till September 29, 1983, when he appea-
red before the Sessions Judge, and moved an application under s.438 ·Cr. P.C. 
for anticipatory b1il, and by order dated Septernber 30, 1983 it was granted 
wi1h a direction that if the re:ipondent was taken into custody by the police he 
niust be released on bail on his furnhhing 'sc~urity in the a1nount of R,s, 5,000 
on condition that he will assist in the investigation and will not go out of 
India. 
The appellant moved the High Court questioning the correctnc$S of th;~· 
order ,granting anticipatory b~il and for cancel~ation of the same. A Si?~le Judge 
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held that he had locus stand1 to move the High Court for cancellatJofJ. of the 
anticipatory bail but on merits ]held that ;no ground~ were made out for 
ils cancellation, and accordingly rejCcted the application. 
The Appellant appeallcd to this Court. 
Allowing the Appe:il, 
HELD : 1. Relevant consideration~ governing the Court's decision in 
·granting anticipatory hail under s.438 are materially different from those when 
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an application for bail by a person who is arrested in the course of an investi-
sation as also by a person who is convict~1 and his appeal is pendine: b~fo11r th11 
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POKAR RAM RAJASIHAN . 
781 
higher court and bail is sought during the pendency of the appeal. In the in-
stant ca'ie. the High Court uofortu:i.ately fell into error in mh:ing up all the 
considera~ions, as if all the three become relevant in the present situation. 
[78SB-C] 
2. The distinction between an ordinary order of bail arid an order of 
anticipatory bail is_ th~t wher.eas the former is granted after arrest and, therefore 
meanS release from the custody of the police, the latter fa granted in anticipa-
tion. of arrest and is, therefore, effective at the very moment of arrest. Unlike a 
post-arrest order of bail, it is a Pre-arrest legal process which directs that if the 
person in whose favour it is' issued is thereafter arrested on the accusati~n in . 
reS:pect of ~hich t~e direction is issued, he shall be released on bail. A direc-
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tion under s.438 is intended to confer conditional immunity from the touch 
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as envisaged by s.46(1) or confinement. [78D-til 
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3. In regare"d to anticipatory bail, if the proposed accusation appears to 
stem not from motives of furthering the ends of justice but from some ulterior 
motive, the object being tO injure and humiliate the 3pplicant by having him 
arrested, a direction for the release of the applicant on bail in the event of his 
arrest would generally be m~de. It cannot be laid down as an inexorable rule 
that anticipatory bail cannot be granted unless the proposed accusation appears 
to be actuated by mala fides; and, equal:y, that anticipatory bail mast be granted 
if there is no fear that the applicant will abscond. Some of the relevant consi-
deralions which govern the discretion of the Court while deciding an application 
for anticipatory bail are the nature and seriousness of the proposed cl_larges, 
the context of the events likely to lead to the making of the charges, a rcas~na­
ble possibility of the applicant's presence nOt beirig secured at the trial. a rea-
sonable appreherision that witne.;se~ will be tampered With and ' 1the larger 
·iDterests of the public or the St-1te'.'-
In the evaluation of the consideration 
whether the applicant is likely to abscond, there can be no presumption that the 
wealthy and the mighty will submit them~elves to trial and that the humble and 
poor will run away from the counv.: 
of ju Hice, any more than there can be a 
presumption that the former are not likely to ·commit a crime and the latter 
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are more likely to commit it. [785G-H ; 786

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