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Sourika Jana, Symbiosis Law School, Noida.
Date: 04.02.2022
ANTICIPATORY BAIL: ITS IMPORTANCE AND EFFECTIVENESS
Abstract
Section
438 of the Indian constitution deals with the provision of anticipatory bail. A
person who has a reasonable apprehension that they might be arrested can file
for such bail. This is a pre-arrest legal relief provided to protect the
liberty of an individual. The section hence emphasizes the principle that a
person is innocent till proven guilty. It was added in the 41st law
commission report which emphasizes the need for providing an interim relief
since a lot of influential people had begun implicating their rivals in false
cases. The following paper also provides the necessary conditions and
eligibility criteria required to file a plea for anticipatory bail. The power
to provide anticipatory bail is an extraordinary power granted only to the High
Court and Court of Session and there is no straightjacket formula for the same.
It lies with the court’s discretion. However, the court must use the power with
utmost diligence. There are a few limitations placed on these powers. Certain
acts of the accused disqualify his plea for anticipatory bail as his liberty
would put the victims in a vulnerable position.
Historical background
The
evolution of the provision of anticipatory bail can be dated back to the year
1215 when the comprehensive charter of “Magna Carter” was introduced by King
John of England. The 39th clause can be related to the Code of
Criminal Procedure or Cr.P.C which outlaws the seizure of property or his
rights without any lawful judgment. Hence, we can assume that it refrained from
restricting any rights of a person unless there was a court-sanctioned order
for doing so.
The
provision of anticipatory bail was added by the 41st Law Commission
report dating September 24, 1969, by the Parliament of India preceding which,
Cr.P.C 1898, did not contain any provision regarding anticipatory bail. They emphasized
the importance of introducing a provision enabling The High Court and Court of
Sessions to provide anticipatory bail with their discretion. It was then
incorporated in the 33rd chapter of Cr.P.C 1973 under section 438.
Difference between bail and anticipatory bail
Bail
is the act of release of a person arrested, from jail, on the promise that they
will attend court proceedings against the accusations provided against him. It
includes a personal and a bail bond. The provisions regarding bail are laid
down in sections 436 to 439 in Cr.P.C.
Anticipatory
bail, falling under the category of bails, is contingent. It is obtained by a
person who anticipates arrest. This provision allows a person to get out on
bail if arrested for committing a non-bailable offense. The intention of
insertion of such a provision is personal liberty. No person shall be confined
unless held guilty.
There
are a few differences between bail and anticipatory bail. Where bail can be
granted by any judicial magistrate or court, anticipatory bail can only be
processed by a The High Court or Court of Sessions. Bail is a post-arrest legal
process granted only after the arrest of a person. Anticipatory bail on the
other hand is a pre-arrest legal process and applied for in anticipation of
arrest. Bail can be granted in case of both bailable and non-bailable processes
as according to section 437 in Cr.P.C but anticipatory bail can only be granted
in case of non-bailable offences.
The
difference was further highlighted in the case of Gurbaksh Singh Sibbia v.
State of Punjab[1].
The
Hon’ble Supreme Court held that “The distinction between an ordinary order
of bail and an order of anticipatory bail is that where the former is granted
after arrest and therefore means release from the custody of the police, the
latter is granted in anticipation of arrest and is, therefore, effective at the
very moment of arrest”[2].
The
following distinctions were highlighted in the case:
· Plea
for anticipatory bail cannot be rejected merely because the offence committed
is punishable with imprisonment for life.
· The
registration of an FIR is not a condition necessary to apply for anticipatory
bail. If there exists a reasonable belief that the person fears arrest even
when FIR is not filed, then such a person can apply for anticipatory bail.
· There
must be substantive grounds for the reasonable suspicion of arrest and mere
fear of arrest is not a reasonable ground to apply for anticipatory bail.
· The
courts have discretionary power to grant anticipatory bail which must be
exercised with due caution and diligence. However, this is not a bar to
providing anticipatory bails only in exceptional cases.
· The
restrictions provided in section 437 are not implicit when it comes to section
438.
· The
High Court or Sessions court must use its own mind on deciding whether the
necessary conditions for anticipatory bail have been met. It must not rely on
the decision of a magistrate.
· If
a court has reasonable suspicion that the accused may take undue advantage of
anticipatory bail and flee, they might prevent the issuance of such an order.
Section 438 of Cr.P.C
Direction
for grant of bail to person apprehending arrest:
“(1)
When any person has reason to believe that he may be arrested on an accusation
of having committed a non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section; and that Court may, if
it thinks fit, direct that in the event of such arrest, he shall be released on
bail.
(2)
When the High Court or the Court of Session makes a direction under sub-section
(1), it may include such conditions in such directions in the light of the
facts of the particular case, as it may think fit, including–
(i)
a condition that the person shall make himself available for interrogation by a
police officer as and when required;
(ii)
a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
police officer;
(iii)
a condition that the person shall not leave India without the previous
permission of the Court;
(iv)
such other condition as may be imposed under sub-section (3) of section 437, as
if the bail were granted under that section.
(3)
If such person is thereafter arrested without warrant by an officer in charge
of a police station on such accusation, and is prepared either at the time of
arrest or at any time while in the custody of such officer to give bail, he
shall be released on bail; and if a Magistrate taking cognizance of such
offence decides that a warrant should be issued in the first instance against
that person, he shall issue a bailable warrant in conformity with the direction
of the Court under sub-section (1).”
Subsection
1 provides that the court has the power to grant anticipatory bail only to
people who apprehend arrest for non-bailable offences. The section
empowers only the High Court or Sessions Court to grant such relief. The
parliament has however put some limitations on the exercise of such power.
· The
court shall consider the gravity of the offence committed before granting
anticipatory bail.
· The
court shall take into notice the priors of the accused.
· The
court shall look into the accusations made by the FIR and make sure they are
not mala fide in nature.
· The
court should make sure that the accused has no intention to flee justice.
Subsection
3 provides that after successful completion of the application if the accused
is arrested without a warrant, they shall be released immediately. In case the
magistrate issues any warrant against such person, it would be bailable in
nature.
Who can seek the bail and under what conditions?
Any person who has a reasonable fear of being
arrested, if succeeds in proving substantial evidence for the same, is eligible
to apply for anticipatory bail against Section 438 of Cr.P.C. If a person fears
arrest based on trumped-up charges and false claims made against them, it would
make them eligible to apply for anticipatory bail.
However,
State of M.P. v. Pradeep Sharma[3], laid down the clause that
if a person has been declared as an absconder or proclaimed officer as
according to the terms of section 82 of Cr.P.C. and has not complied with the
investigation protocols, is disqualified from obtaining the bail.
Lavesh
v. State (NCT of Delhi) [4], later confirmed this
judgement:
“When the accused is ‘absconding’ and declared as
a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate
that when a person against whom a warrant had been issued and is absconding or
concealing himself in order to avoid execution of warrant and declared as a
proclaimed offender in terms of Section 82 of the Code is not entitled the
relief of anticipatory bail.”
Conditions
for applying for anticipatory bail:
· The
person shall respond and answer police investigations whenever required
· The
accused shall not make any threats to any person acquainted with the facts of
the case or convince them not to disclose it infront of the court of law
· The
person shall not try to leave the country without the permission of the court
· The
High Court make ask the person released on bail to be arrested and put into
custody if an application has been moved by the prosecution
In
Rukmani Mahato vs The State of Jharkhand[5], the court held that a
trial court cannot grant an accused interim relief if they have already filed a
petition against a higher court of law and such matter is still pending before
the superior court.
Ambit and Scope
Section
438 of Cr.P.C empowers the High Court and Sessions Court to grant interim bail
to anyone anticipating arrest. This extraordinary power can be used in cases
where a person appears to have been falsely implicated or a frivolous case has
been launched against him or where the case maybe that the arrest imposes a
serious infringement on the rights of the arrested. There is no limitation on
when the power can be used and it is completely up to the discretion of the
court to grant bail in whichever non-bailable offence the accused has
committed.
The
constitution bench in Gurbaksh Singh Sibbia and Others v. State of Punjab[6], stated that
“…A wise exercise of judicial power
inevitably takes care of the evil consequences which are likely to flow out of
its intemperate use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be exercised, has to
be used with due care and caution. In fact, an awareness of the context in
which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hall mark of a prudent exercise of
judicial discretion. One ought not to make a bugbear (without reason) of the
power to grant anticipatory bail.”
Case laws
In Bachu Das v State of Bihar[7], the
court decided if the actions of the accused were against Section 18 of the SC
& ST Act, they were not eligible to apply for anticipatory bail. Any prima
facie case against the accused regarding Section 3 of the SC & ST Act and
sections 147, 148, 149, 323 and, 448 IPC immediately creates a bar against
interim relief. When the atrocities are committed against the “untouchable”
classes, there is reasonable apprehension that once the apprehender is granted bail,
he might resort back to his old acts of terrorizing his victim. Hence, a plea
for anticipatory bail may be denied in the above case. The offenses under the
act are dehumanizing in nature sought to degrade one’s status in society and
prevent them from living a life of dignity. “Such offences are committed to
humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a
view to keeping them in a state of servitude.”[8]
Hence in this case, it is not violating the right to life of the accused.
In MC Abraham v
State of Maharashtra[9], the bail application of the accused had been
rejected several times. However, the investigating officer did not consider it
necessary to arrest him. The High Court instructed the state to arrest the
petitioner. In an appeal, it was held that the High Court had no authority to
interfere with the investigation. Rejection of bail application was not a
sufficient ground for the Court to direct his arrest. Even after anticipatory
bail is rejected, the person may not be put for trial as sufficient case cannot
be made against him. The idea that he has to be arrested just because his bail
requests have been turned down is erroneous in nature.
In Manju Devi v
Onkarjit Singh Ahluwalia @ Omkarjeet Singh[10],
the complainant filed a complaint before the court of Chief Judicial Magistrate
that the respondents broke into her home and tried to outrage her modesty. After
her escape, the respondents proceeded to call harass and insult them by using
casteist slurs. The Magistrate took cognizance of the report and ordered
detention against sections 323, 354 and 452 of the IPC and section 3(1)(xi) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989.
The respondents then filed an appeal before the High Court for anticipatory
bail which was then granted by a single bench judge. An appeal was then filed
against this order to the apex court who overturned the decision of the High
court.
- “In view of the above discussion
and in the light of the specific averments in the complaint made by the
complainant, we are of the considered opinion that section 18 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989
creates a bar for invoking section 438 of the Code and the High Court has
committed grave error in granting anticipatory bail to the respondents.
Accordingly, the order dated 03 December 2014, passed by the High Court,
is set aside.
- The appeal is allowed. The
respondents are granted four weeks’ time from today to surrender before
the appropriate court and seek for regular bail. However, it is made clear
that the present conclusion is confined only to the disposal of this
petition and the trial court is free to decide the case on the merits.”
Sushila Agarwal v. State of
Delhi 1 is a landmark judgement when it comes to the provision of
anticipatory bail.
The question was regarding the time
period of the bail. Two issues were placed infront of the Hon’ble Supreme
Court:
1.
Should there be any time limit fixed to Section 438 of
Cr.P.C which enables the person to surrender before the court and then proceed
to seek regular bail
2.
Whether the life of
anticipatory bail end when the accused is summoned for trial to the court
The fie bench judge unanimously held that there shall be
no time bar to the protection granted by Section 438 of Cr.P.C. As the interim
relief provided is to make sure the accused doesn’t suffer harassment pre-arrest,
setting a time bar would violate Article 21. They held that Article 21 and
Section 438 of Cr.P.C. go hand in hand.
The apex court held that the life of the anticipatory
bail does not end with the beginning of the trial but can continue indefinitely
till the end of the trial. It does not end when the charges are framed or the
accused is summoned to court. It is up to the discretion of the court to end
the tenure of the bail.
Conclusion
Importance
and effectiveness of anticipatory bail
Section
438 of Cr.P.C. and Article 21 of the right to life go hand in hand. The
provision of the right to life and the right to live with dignity has been
enshrined in the above section. The provision was first brought into force
because a lot of times influential people tried to implicate their rivals in
false cases for the sole purpose of disgracing them or hampering their
reputation. They use the legal means to put their rivals into detention for some
days.
The
right to life is also protected as a great amount of humiliation and disgrace
is involved in an arrest. It may lead to loss of person, pocket or property.
Loss of reputation is attached to it even though a person might be acquitted.
For common people arrest is equivalent to some heinous crime and detention even
in the early stages equals a shameful and heinous crime. Hence even after
they’re acquitted the damage done sometimes becomes irreparable. Arrest and
detention directly affect the life and liberty of a person. The Indian
constitution puts great emphasis on the liberty of an individual. Hence if an individual applies for
anticipatory bail on the reasonable apprehension that his liberty is at risk
without any substantial cause the court might grant him such relief.
The purpose of the section was to recognise the importance of liberty and give it due stature in a free democratic country. The section hence enshrines the age-old principle that a person is innocent till proven guilty beyond all reasonable doubt.
[1] (1980) 2 SCC 565
[2] Available
at: https://www.legalserviceindia.com/legal/article-5916-bail-anticipatory-bail-mandatory-bail-and-bail-after-onviction.html,
last visited on: 30-07-21, 11.09 am
[3] (2014) 2 SCC 171
[4] (2012) 8 SCC 730
[5] 2017
[6] AIR 1980 SC 1632 [LNIND 1980 SC
168] : 1980 SCC (Cr) 465
[7]
2014 Cr LJ 1828 (1830) (SC): (2014) 3 SCC 471: (2014) 135 AIC 11 (SC)
[8] RP Kathuria: Supreme Court on
Criminal Law (1950-2018), 10th ed, LexisNexis India
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