anticipatory bail

“Bail before Jail” – Then & Now
Shantimal Jain, Vice President [P], Rajasthan Textile Mills, Bhawanimandi,
Rajasthan.
“In a barbaric society you can hardly ask for bail, in a civilized society you can hardly refuse
it”. The bail is a rule and refusal is an exception.
The provisions of anticipatory bail incorporated the legislature’s intention to protect the
citizen from unscrupulous persons, who use the weapon of arrest either for getting civil
dispute settled or for black-mailing the so made accused by maneuvering matters. As the
Supreme Court observed in Kishore Chand v. State of H.P. (1991) I SCC 286 that a sincere and
honest investigation has to be made and to feel sure that the person suspected of the crime
alone was responsible to commit the offence. Indulging in free fabrication of the record is a
deplorable conduct on the part of the investigating officer, which undermines the public
confidence, reposed in the investigating agency. It is time that the investigating agencies
adopt new and scientific methods.
In the Code of Criminal Procedure, 1898, there existed no provision for anticipatory bail. The
judicial opinions were sharply divided whether courts possessed such a power in the absence
of express provision in that respect. The majority verdict maintained that there was no such
power. Wharton Law Lexicon explains “bail” as to set at liberty a person arrested or imprisoned,
on security being taken for his appearance. Thus bail is basically release from restraint, more
particularly from the custody of Police. The distinction between an ordinary order of bail and
an order under Section 438 of the Code is that whereas the former is granted after arrest, the
latter is granted in anticipation of arrest.
It was first brought into being under Section 438 of the Code of Criminal Procedure, 1973
which came into force on April 1, 1974. The Law Commission in its 41st report observed –
“The necessity of granting anticipatory bail arises mainly because sometimes influential
persons try to implicate their rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in Jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from
false cases, where there are reasonable grounds for holding that a person accused of an offence
is not likely to abscond or otherwise misuse this liberty while on bail, there seems no
justification to require him first to submit to custody, remain in prison for some time and then
apply for bail”. The power was to be given to superior courts. It was felt to be entrusted to such
courts because they posses greater jurisprudential vision. Under Section 438 of the Code, the
High Courts and Courts of Session could grant anticipatory bail to any one who has reason to
believe that he may be arrested on accusation of having committed a non-bailable offence.
New dimensions were added to the provision of bail; and new horizons were opened. It
widened the powers of the superior courts. The provision for anticipatory bail was meant for
non-bailable offences. The provision of anticipatory bail was in that nature. It only originated
in Indian Judicial mind. It was in consonance with our commitment to individual liberty,
which implied scrutiny of every action of the investigating agency to provide effective check
against arbitrariness and abuse of such power.
In a landmark judgement of Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 the Apex
Court has made very pertinent observations on the entire anatomy of this concept when it
held that “An anticipatory bail is a pre-arrest legal process which directs that if the person in
whose favour it is issued is thereafter arrested on the accusation in respect of which the
Anticipatory bail provisions
contained in the Code of
Criminal Procedure, 1973
have been amended in 2005,
diluting the rigour of the
provisions considerably. Why
such dilution is not justified,
or warranted, is what this
article seeks to explain.
Articles
direction is issued, he shall be released on bail. The distinction
between an ordinary order of bail and an order of anticipatory
bail is that whereas 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. A direction under Section 438 is therefore
intended to confer conditional immunity from the ‘touch’ or
confinement contemplated by Section 46 of the Code.
In order to meet the challenge of Article 21 of the Constitution,
the procedure established by law for depriving a person of his
liberty must be fair, just and reasonable. Section 438 is a procedural
provision, which is concerned with the personal liberty of the
individual, who is entitled to the benefit of the presumption of
innocence since he is not, on the date of his application for
anticipatory bail, convicted of the offence in respect of which he
seeks bail.
Since denial of bail amounts to deprivation of personal liberty,
the court should lean against the imposition of unnecessary
restrictions on the scope of Section 438, especially when not
imposed by the legislature. An over-generous infusion of
constraints and conditions, which are not to be found in Section
438, can make its provisions constitutionally vulnerable since
the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions. The beneficent
provision contained in Section 438 must be saved, not
jettisoned.
Very recently the Apex Court in the case of Naresh Kumar Yadav v.
Ravindra Kumar & Ors. 2008 (1) RLW 899 (SC) has bended the law
on the anticipatory bail by defining certain parameters for the
grant of anticipatory bail. It has held that power to grant should
be exercised in exceptional cases and that anticipatory bail should
be granted for limited duration only otherwise provisions for
regular bail after arrest under section 439 would be rendered
redundant. The person applying for anticipatory bail must show
that he has reason to believe that he may be arrested in a nonbailable
offence.
This belief must be founded on reasonable grounds. Mere “fear”
is not “belief”. It is also correct that section 438 is a device to
secure the individual liberty but then it is neither a passport to
the commission of crimes nor a shield against any and all kind of
accusations likely or unlikely. The order for the continuance of
the bail order should fix some outer date so that the applicant
does not have a blanket order that whenever he is arrested for
whichever offence should be released on bail. The protective
umbrella of Section 438 should not be extended beyond and
without limit of time otherwise the result would be clear
bypassing of what is mandated in Section 438. In Naresh Kumar
Yadav’s case the court also referred to the cases of Salauddin
Abdulsamad Shaikh v. State of Maharashtra AIR 1996 SC 1042, Nirmal
Jeet Kaur v. State of MP (2004) 7 SCC 558, Sunita Devi v. State of Bihar
(Criminal Appeal arising out of SLP Cr. No. 4601 of 2003) and
Niranjan Singh v. Prabhakar Rajaram Kharote AIR 1980 SC 785.
It may be relevant to refer here the recent case of Som Mittal v.
State of Karnataka 2008 (65) AIC 187 (SC) wherein some aspects of
“bail” provisions have been highlighted. The matter related to
the State of UP where the provision of anticipatory bail did not
exist. In this case the Supreme Court liberalised the provisions
of Section 439 relating to regular bail. The Apex court referred
to the cases of Jogendra Kumar v. State of UP and others AIR 1964
SC 1349 and the case of Smt. Amravati & another v. State of UP 2005
Cr. LJ 755. This case contains the decision of the Seven Judges
Full Bench of Allahabad High Court. In these two cases it has
been held that Sessions Judge while considering a bail
application under Section 439 Cr. PC could grant interim bail
till final disposal of the bail application subsequently so that
innocent persons are enabled to avoid going to jail pending
consideration of their bail application. In Joginder Singh’s case,
it has been ruled that no arrest should be made because it is
lawful for the Police Officer to do so. The existence of power to
arrest is one thing and justification for the exercise of it is quite
another. The Police Officer must be able to justify the arrest
apart from its power to do so. The arrest and detention in Police
lock up of a person can cause an incalculable harm to his
reputation. No arrest should be made in a routine manner on a
mere allegation of commission of a cognizable offence made
against a person. The concept of interim bail has been
recognized and given effect to. It is a welcome sign so far liberty
of a person is concerned.
Inspite of the aforesaid enunciated cannons on the provisions of
anticipatory bail the same has been amended by the Code of
Criminal Procedure (Amendment) Act, 2005 which is reported to
have come into force on 23.6.2006. Accordingly amendment of
Section 438 sub-section (1) has been made and the following subsections
have been substituted namely –
“(1) Where any person has reason to believe that he may be
arrested on 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 that in the event of such
arrest he shall be released on bail; and that Court may, after
taking into consideration, inter alia, the following factors,
namely –
(i) the nature and gravity of the accusation;
(ii) The antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of
injuring or humiliating the applicant by having him so
arrested, either reject the application forthwith or issue
an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be,
the Court of Session, has not passed any interim order under
this sub-section or has rejected the application for grant of
“Bail before Jail” – Then & Now
Articles Articles
anticipatory bail, it shall be open to an officer in-charge of a
police station to arrest, without warrant, the applicant on the
basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under subsection
(1), it shall forthwith cause a notice being not less than
seven days notice, together with a copy of such order to be
served on the Public Prosecutor and the Superintendent of
Police, with a view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall be
finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail
shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on an
application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice”.
This Section has been amended to the effect that – (i) the power to
grant anticipatory bail should be exercised by the Court of Session
or High Court after taking into consideration certain circumstances;
(ii) if the Court does not reject the application for the grant of
anticipatory bail, and makes and interim order of bail, it should,
forthwith give notice to the Public Prosecutor and Superintendent
of Police and the question of bail would be re-examined in the
light of the respective contentions of the parties; and (iii) the
presence of the person seeking anticipatory bail in the Court should
be made mandatory at the time of hearing of the application for
the grant of anticipatory bail subject to certain exceptions.
A dispassionate examination of the salient features of the
amendment would reveal that the liberty of the citizen to be
freed under certain circumstances, is being curtailed considerably
i.e. in the first instance the anticipatory bail order is being split
up into two viz. interim and final. It has further been made
mandatory that in the event of the interim order being made on
the anticipatory bail application there shall forthwith be caused
a notice being not less than 7 days notice, together with a copy of
such order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public Prosecutor
a reasonable opportunity of being heard when the application
would be heard by the court for final order. Earlier the granting
of anticipatory bail order was a complete umbrella against
arbitrary arrest except the legal conditions, which were there
attached with the bail order. Now if the interim bail order is
made it would only be a respite for 7 days or so. The interim
order would now be susceptible to being opposed, would afford
sufficient time to the Public Prosecutor and the Police to
maneuvering and fabricating things. It is now in essence an
antithesis of other concept of bail. Then again the presence of the
person seeking anticipatory bail in the court at the time of final
hearing would render the person vulnerable for immediate arrest
and the police would have a ready victim and such a person
would have no chance of avoiding indiscrimate arrest.
The entire metaphysics passes comprehension as to what were
the imperatives for incorporating these draconian conditions,
which would only encourage police atrocities because the police
would overawe the person who is required to be present in the
court. A person is entitled to the benefit of the presumption of
innocence, as he is not, on the date of his application for
anticipatory bail convicted of the offence in respect of which he
seeks bail and therefore there is no warrant for reading unto the
Section 438, the conditions and requirements subject to which
bail would be granted. In the circumstances the requirement of
interim and final order could not be envisaged in ordinary course.
It was earlier also there that notice was to be issued to Public
Prosecutor or the Government advocate and it could have been
re-examined in the light of respective contentions of the parties
so there was no specific need for incorporating these stringent
conditions and limiting the operation of the interim order in
relation to a period of time. It negates the entire purpose for
which this provision was originally brought on the statute book.
It is therefore felt that this amendment would generate much
resentment and would defeat the purpose of the section.
In the present vitiated, polluted and contaminated political
atmosphere, it has become a fashion to revenge the adversary by
implicating him into false and fabricated cases and involving
big-wigs in many a time unfounded rackets and these practices
are nearing flash point. It is therefore necessary that provisions
of anticipatory bail should be liberalized. 􀂉
“Bail before Jail” – Then & Now