Grant of pre-arrest bail is an extraordinary relief to be granted only in extraordinary situation to protect innocent persons against victimization through the abuse of law for ulterior motives.
Scope and object:
Pre-arrest bail is an extraordinary relief the scope thereof is narrow, but it can be lawfully extended to a person who does not prima facie, appears to have committed a non-bailable offence and there is room for further probe into his guilt within the meaning of S. 497 (2) Cr.P.C. Primary object of pre-arrest bail is to save innocent persons from the apprehension of being arrested for a tainted purpose, driven by malice and malignancy of intention.
Conditions to be fulfilled:
498 Cr.P.C empowers a court of session and High Court to grant a pre-arrest bail in cases of exceptional nature, but such power is to be exercised when pre-conditions laid down by superior courts are satisfied. The main conditions to be satisfied before exercise of jurisdiction in pre-arrest bail.
That there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner.
Surrender before court:
That the petitioner should physically surrender to the court case of further inquiry. Presence of accused is necessary for considering his bail application; his willful absence will entail rejection of bail petition without going into merits of the case. Privilege of pre-arrest bail can only be available to a person who surrenders before the court. Court always insists upon physical personal appearance of accused.
Case of Further Inquiry:
Bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through sub-section (2) of S. 497 of Cr.P.C i.e., unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were in fact, sufficient grounds warranting further inquiry into his guilt.
Arrest for ulterior motives:
Not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of police; to cause irreparable humiliation to him and to disgrace and dishonor him.
Entitlement to discretionary relief:
Such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g he had no past criminal record or that he had not been a fugitive from law.
Irreparable injury to reputation:
In the case of Ghulam Abbas Vs. ZakaUllah PLD 1976 Lah. 21, it was observed that the foremost consideration in the mind of court in dealing with an application of bail before arrest is whether irreparable injury to the name and liberty of a citizen would result if bail is refused.
Accused whose involvement in the case appears to be false and mala fide must be protected by a court of law. Mala fide involvement may be due to the ulterior motives of the complainant or the police. If police share the ulterior motives of the complainant party and attempts to arrest an accused person collusively then the police can also be presumed to be acting with mala fide intention. For claiming concession of bail before arrest, accused has to show that police ought to arrest him with mala fide intention.
Not a substitute of post arrest bail:
Pre-arrest bail is not to be used a substitute or as an alternative of past arrest bail.
Session court to be firstly approached.
In the absence of reasonable and justifiable cause, a person desiring his admission on bail before arrest, must in the first instance, approach the court of first instance i.e., the court of sessions before petitioning the High Court for the purpose.
No court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest were satisfied.