What purpose the prosecution would achieve by sending an accused in custody is an important point to be considered. Simply because an individual is alleged to have been involved in some serious crime, does not necessarily justify accused to be send to custody, unless there are compelling factors which justify curtailing the personal liberty of an accused.

The courts dealing with the issue of Anticipatory Bail’s have to balance between the personal liberty of the accused on one hand and law and order in the society on the other hand, and in doing that the courts were given complete discretion keeping in mind the facts and circumstances of each case.

In dealing with anticipatory bail applications the Triple Test Rule is as follows:

1. Presence of the accused:-

In doing so the courts are guided by the conduct of the accused . If the accused has made himself available at all times whenever required in past and is co-operating with the investigation , the courts take this factor in favor of the accused while granting anticipatory bails.

2. Nature of evidence involved:-

If the case is primarily based on documents and all the documents were already in the custody of the investigating agency, the scope of tampering becomes impossible and the accused be released on bail, also keeping in mind that since the accused had not tampered the documents at any point of time in past, the courts take this factor in favor of the accused while granting anticipatory bails.

3. Deep Roots in the society:-

The court take judicial notice of the fact that the accused had deep roots in the society, is staying at his permanent address since long, had all properties and family within the local limits and is not previously involved in any criminal activity.

To ensure the future presence of the accused, the courts impose conditions in the form of surety of higher amount, direct the accused to appear before the investigating officer once in a month, ask the accused to submit his passport and not to travel without the permission of the court.

Above all the courts have to balance a fair investigation, fair trail ensuring that the complainant or the witnesses be not threatened or influenced, documents not tampered with, law and order in the society not disturbed, presence of the accused during trail on one hand and personal liberty of the accused as a fundamental right of life and liberty as enshrined in Article 21 of the Constitution of India on the other hand.

View Expressed are Personal

Written by: Kapil Chandna Advocate
Practicing at Supreme Court of India
Email: [email protected], Ph no: 9899011450/9911218741