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10 Definitive Tests to Guide Courts while Deciding Applications for Bail in Apprehension of Arrest

The judgement of Dalveer Bhandari, J, in Siddharam Satlingappa Mhatre vs State of Maharashtra, (2011) 1 SCC 694, speaking for himself and K. S. Radhakrishnan, J., which is regarded as a watershed decision in "anticipatory bail jurisprudence", sets out the following ten definitive tests, to guide courts while deciding applications for bail in apprehension of arrest, under Section 438 of the Cr.P.C.
1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

3. The possibility of the applicant to flee from justice;

4. The possibility of the accused's likelihood to repeat similar or other offences;

5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

8. 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;

9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
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