Avoid arrest if accused cooperates: Supreme Court

New Delhi: The Supreme Court has held that arrest and custodial interrogation should be avoided in cases where the accused cooperates with the investigating agency in its probe and he is not likely to abscond.

Giving this ruling a bench of Justices A.K. Sikri and Rohinton Nariman said, “In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community.”

Writing the judgment Justice Sikri said, “Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Cr.P.C to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”

Setting aside a Gujarat High Court order cancelling the anticipatory bail granted to the appellant Bhadresh Bipinbhai Sheth, the bench said, “The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor.”

It said, “The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.”