In Y. Nagaraju v. State of Andhra Pradesh, anticipatory bail has been granted by the Special Judge for Trial of Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 who was not the competent authority to grant such bail. The appellant in this case went to the Special Judge in anticipation of his arrest under the said Act. But when the case went to the High Court of Andhra Pradesh the Court struck down the bail as beyond the power of the judge.
The question whether a person can approach the High Court directly for a petition under Section 438 was answered by the Bombay High Court in a positive way. In Mohan Lal v. State of Maharastra, the petitioner without approaching the Sessions Court of Nagpur directly approached the Bombay High Court for anticipatory bail. The offences alleged against him are 420, 417 and 411 of IPC. The High Court held that the applicant in this case deserves anticipatory bail and accordingly passed an interim order under Section 438.
1.3] Conditions and Grounds for grant of anticipatory bail
Necessary conditions made imposed by the High Court or the Court of Session, while granting anticipatory bail as mentioned in Section 438 (2). The conditions mentioned in the section are only illustrative and the court may impose other conditions if it thinks fit, with a view to strike a balance between the individual’s right to personal freedom and investigational rights of the police. In Phulla Das v. State of Punjab the court held that it can direct that the applicant should surrender himself to the police far a brief period if a discovery is to be made under Section 27 of Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. While granting anticipatory bail the court may direct that the order of anticipatory bail will remain only for a limited week or so until after the filing of the FIR in respect of the matters covered by the order. The applicant in such cases may be directed to obtain an order of bail under section 437 or 439.
2.] Critically Ascertaining the amendments
Section 438 has been extensively amended by the Code of Criminal Procedure (Amendment) Act, 2005. New sub-sections (1), (1A) and (1B) substitute the existing sub-section (1) of Section 438. The Section now provides for certain factors which the court will consider while dealing with an application for anticipatory bail. The Amendment further gave power to the officer-in-charge by allowing them to arrest the accused if the concerned court has either rejected the application or has not passed any interim order for grant of anticipatory bail.
If the Court grants an interim order, it shall give notice being not less than seven days notice to 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 is finally heard by the Court. The amendment also made obligatory the presence of the applicant seeking anticipatory at the time of final hearing of the application and passing of a 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.
2.1] Officer-in-charge to arrest the applicant if the bail petition is rejected (proviso)
If a person apprehending arrest applies for a bail under section 438 to the appropriate court and the court has not passed an interim order or has rejected the application for anticipatory bail then it will be open to the officer-in-charge of the police station to arrest without warrant the applicant on the basis pf the accusation apprehend in such application (proviso to Section 438 (1)). This is totally contradictory to what Supreme Court held in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, where an FIR is not registered or even an FIR is refused to be registered of which the applicant himself may not be aware, merely because the anticipatory bail application is moved, and interim order is not passed or where anticipatory bail is rejected as a matter of course based on the averments, arrest should not be made.
This court reiterated this again in M.C. Abraham and another v. State of Maharashtra and others, where serious allegations were made against the Directors of Maharashtra Antibiotics and Pharmaceuticals Ltd.(MAPL) which is a joint venture of the Central Government and the State of Maharashtra under Sections 406 and 409 r/w 34 of IPC. The applicants moved the High Court for anticipatory bail. But the High Court rejected their bail application. After some days the petitioners went to the same court with writ petitions for directing the state authorities to arrest the Directors. The High Court observed that it was shocking that the writ petitioners have to approach the High Court seeking directions against the State to act on the complaint lodged by the Provident Fund Commissioner against the Directors of MAPL. Despite the fact that their applications for grant of anticipatory bail had been rejected by the High Court by a reasoned order, they had not been arrested and ordered the state authorities to arrest the accused.
The Directors of MAPL moved the Supreme Court for an order against the High Court. The Supreme Court held that the mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. Arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The Section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that Section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of him having been so concerned.
2.2] Notice to the public prosecutor
As a matter of general practice most of the Courts before giving the final order on a petition for anticipatory bail will give an opportunity to the public prosecutor to provide their version of the facts of the case and arguments. But after the 2005 Amendment Section 438 (1B) has been inserted making mandatory that the court shall before granting a final order it shall give notice to the public prosecutor for a reasonable opportunity of being heard. The same can be observed as a practice of the court before the 2005 amendment also. In Rattan Kumar v. State of Assam, ad interim anticipatory bail was granted ex parte. Subsequently on hearing both the parties, the earlier order granting bail was reversed. It was held that the subsequent order was not order of cancellation but refusal to grant bail.
Although the existing Section 438 does not stipulate hearing of the State authorities while considering grant of anticipatory bail, it is inherent in the provision that the State authorities being necessary parties to such an application should be afforded an opportunity of being heard in the matter. In State of Assam and another v. R.K. Krishan Kumar and others, the learned Single Judge of Bombay High Court issued direction under Section 438 to release the respondents, if arrested, on bail without even affording an opportunity to the appellants, i.e. the State of Assam and its Director General of Police in spite of they being made parties in each of the applications for anticipatory bail. In view of the conceded position that appellants were not heard by the High Court, the Supreme Court set aside the impugned orders on that ground alone.
Two reasons can be made out from this provision firstly, that if the appellant comes to High Court or Court of Session for anticipatory bail, the court may not be in a position to appreciate the facts because the court will have a very vague idea of he facts or the version of the facts which the appellant present to that Court and secondly, it is a principle of natural justice that both the parties should be heard before giving a final order for anticipatory bail. The 203rd report of the law commission approved this amendment.
2.3] Presence of Applicant
A person applying for an anticipatory bail under Section 438 is not necessarily be present in all the cases of final hearing of the bail applications. But, it is only in such cases where an application has been filed by the Public Prosecutor for the presence of the petitioner and the court considers the presence of such person necessary in the interest of justice. Such a conclusion can be reached by the court after hearing both the parties. The petitioner would thus have an opportunity to present his side of the case while opposing the application filed by the Public Prosecutor. Where no such application has been filed by the Public Prosecutor, it may not be necessary for the applicant to be present at the final hearing of his application for anticipatory bail.
This is provided in the new 2005 amended version of Section 438(1B). As a result of this applicant rights will be widely affected firstly, that personal appearance of the applicant in the Court at the time of final hearing of his application would enable the police to arrest him in the event of rejection of his application by the Court, and secondly, in such an event, the applicant would be deprived of his statutory right to move the High Court under Section 438 Cr.P.C. otherwise available to him under this Section as concurrent powers have been vested there under in the Court of Session as well as the High Court.
3.] Judicial Interpretation of Section 438
After nearly six years of working of the provision of anticipatory bail bail by different High Courts, the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, came to pronounce that section 438 of the Code of Criminal Procedure, 1973 confers on High Court and the Court of Session a wide discretion to grant or refuse anticipatory bail. No constraints or restraints spelt out in the section as the word ‘it may thinks fit’ clearly enumerates that the intention of the legislature is to give wide discretion to the Courts having jurisdiction. The appellant Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others. Applications were filed in the High Court of Punjab and Haryana under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned Single Judge referred the applications to a Full Bench, which by its judgment dated September 13, 1977 dismissed them.
3.1] Gurbaksh Singh Sibbia and aftermath
The full bench of Haryana and Punjab High Court, had said that the discretion conferred by section 438 is not unguided but all the limitations imposed on the powers to grant bail by section 437 and 439 of the code are to be implicitly read into it and further a special case has to be made out for the exercise of grant of anticipatory bail. It further said that Section 438 is of an extraordinary character and must be exercised sparingly in exceptional cases and also that the petitioner must make out special case for the exercise of the power to grant anticipatory bail. This power shall not be used with offences punishable with death or life imprisonment unless the court is satisfied that the allegations are false and groundless. It stated that in the larger interest of public and state demand that in serious economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under section 438 should not be exercised.
The appeal to the Supreme Court by the appellants in Gurbaksh Singh Sibbia v. State of Punjab, the Apex Court contradicted the reasons given by the High Court and interpreted Section 438 so that the sessions court and the high court will have wide discretionary powers and these guidelines are considered by all the courts before exercising this special power. The court has given following guidelines which will be considered by all the courts before granting anticipatory bail:
The court held that section 438 is of an extraordinary character because ordinarily the bail is applied under section 437 or 439. These sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which the bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character.
A “blanket order” of anticipatory bail should not be passed this flow from the very language of the section which requires that the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Section 438 (1) shall not be used to the affect that the applicant shall be released on bail “whenever arrested for whichever offence he has committed” this is not certainly the intention of the legislature.
The high court says that all the limitations provided in section 437 is applicable to this section and in addition to this the applicant has to make a “special case” for the exercise of the power to grant anticipatory bail. The Supreme Court completely rejected the argument by saying that this virtually reduces the statutory power conferred by section 438 to a dead letter. An applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make a special case. While granting the bail the court may impose certain conditions as necessarily provided in section 438 (2) and these conditions are only indicative and not exhaustive it can also provide for additional conditions if the court thinks fit. This question came before the high court in a recent case, Shanavas Muhammed v. State of Kerala, where the appellant is asking an order from the Kerala High Court for cancelling anticipatory bail granted by the sessions court on the allegations that the accused are not cooperating with the investigating officer. The accused in this case are charged with Sections 143, 147, 148, 323, 324, 506 (ii), 326 and 308 read with S. 149 of the IPC. The public prosecutor and the concerned police officer also accepted that the accused are not cooperating with investigation. The High Court did not cancel anticipatory bail rather it imposed certain conditions that the accused persons shall attend the investigation on particular dates and times. The High Court observed that the conditions provided under section 438 (2) are not exhaustive and if the concerned high court thinks that there must be certain conditions imposed by the court then it is free to do say as held by the Gurubaksh Singh Sibbia case.
The courts seem to have taken economic offences very seriously because in most of the economic offences the entire community is affected and the court generally rejecte the bail petition. In Suresh Badrinarayan Somani, Jalgaon v. State of Maharastra, the appellant was a person who was anticipating of his arrest under sec 406, 408 of IPC. He was the director of a Bank and serious allegations of misuse of funds were alleged on him and in this petition he applied for anticipatory bail. The Apex court observed that, it cannot be forgotten that thousands of depositors have deposited their hard earned money in the Bank which are above Rs. 37 crores. The society has been duped by the Directors of the society without having any regard to the security of the society or the interest of the society. The applicant was Director for a long time and he is influential person, therefore, the possibility of influencing the witnesses or tampering with the evidence cannot be ruled out. Considering all the material facts before it the court rejected the bail petition.
The ruling of Gurubaksh Singh Sibbia is that the lower Courts should not keep unnecessary restraints of its own and make this extraordinary power completely impossible. But, rather it says that the all the Courts having jurisdiction for this Section has to apply its mind according to the factual situation. After this Constitutional Bench case all the courts while granting anticipatory bail refer to this judgment in exercising a power under this Section one of such cases is Savitri Agarwal and Others v. State of Maharashtra and Another, this is a dowry death case and the appellants are charged under Sections 498A, 304-B read with Section 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The deceased was the wife of the second appellant who caught fire and subsequently rushed to the hospital and after some days she died and her father launched FIR about the dowry harassment. Before her death she made two statements to the Executive Magistrate on different days both the statement she reiterated that she caught fire accidentally. The appellants applied for anticipatory bail in the Sessions Court and the Sessions Court granted bail. But the High court rejected the bail petition stating that the grievance of the offences alleged on the appellants does not make them to be released under this section.
Again in another case the court looked at the facts and circumstances of the case and felt that the applicant doesn’t deserve bail under 438 and accordingly rejected petition. In Utsav Bhashin v. state, the appellant in this case was accused of making an accident and causing death of two persons after he made the accident he ran away from the spot and the police officer arrested him latter at another spot. The court in this case observed the fact and circumstances of the case and found that the person did not even join the deceased in the hospital and ran away from the place shows that the person doesn’t deserve bail under this Section.
The court finally observed that the legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory, bail. That is why, departing from the terms of Sections and , Section uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail.
Anticipatory Bail and Article 21 of the Constitution
Section 438, at the very outset is based on a clear nexus of personal liberty of the individual with the protection granted under Article 21 of the Constitution. The law presumes an accused to be innocent till the guilt is proved and this is important component off the Right to fair trial that an essential ingredient of Right to life and personal liberty enshrined in Article 21. Keeping in mind all these factors, Section 438 seems to be in consonance with the principles enshrined in the Constitution.
The question that arises now is whether Anticipatory Bail is a right under Article 21 of the constitution. First of all, Anticipatory Bail is not a right at all, it is a matter of the judges discretion who shall allow it only when certain conditions are met. But can its non-application to certain category offences make the provisions creating such offences constitutionally invalid? Anticipatory Bail is a statutory right conferred long after the coming in force of the constitution and it cannot be considered an essential ingredient of Article 21.
Conclusion
As it is evident from the discussion above that anticipatory bail is an extraordinary provision conferred on the courts of highest echelon so that there will not be any misuse of this power and this was the intention of the legislature when they inserted this special provision in 2003. For this provision the applicant can either approach the Sessions Court or High Court and in case if he approach the High Court he shall provide reasons for why he is approaching this court and if the court thinks fir it should be allowed.
Arrest of the accused should be made by the concerned police officer during his course of his investigation under Section 41 of Cr.P.C if the officer-in-charge thinks so. Merely because an interim order is rejected or anticipatory bail petition is rejected the person can’t be arrested as it interferes with the process of investigation by the police officer and also makes the provision loses its intention of the framers as observed in M.C. Abraham and another v. State of Maharashtra and others. The law commission in its 41st report also held the same that the proviso to section 438 shall be removed as it is already provided in Section 41 of Cr.P.C.
Another amendment to Section 438, that the applicant should be present at the time of final hearing of the petition if the public prosecutor requests the court for the same. The affect of this provision is that if the application is rejected than the officer-in-charge can arrest the applicant according to section 438 (1) proviso and also it infringes the applicant right to appeal to the higher court. So, this provision must be either removed or it should be amended in such a way that the applicant will have his right to appeal.
Every court while exercising its power under the court should grant according to the facts and circumstances of the case and should lay down certain conditions if the court thinks fit. No blanket order of anticipatory bail should be given. As said by the Gurbaksh Singh Sibbia case that anticipatory bail can be granted to even cases involving capital punishment as long the court thinks that the appellant deserves in that specific case. Whatever it might we have to keep in mind that arrest of a person takes away the personal liberty of a particular person so the court while acting on this special power should act in a more liberal manner according to the circumstances of the case and also it should make sure that it doesn’t hamper in the investigation process of the case.
Bibliography
Books
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M.D. Rijhwani, Law of Anticipatory Bail and Bail, (Mumbai: Law & Rules Publications, 1999).
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R.V. Kelkar, Criminal Procedure, Dr. Chandrashekaran Pillai, ed., 5th edn., (Lucknow: Eastern Book Company, 2008).
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D.D. Basu, Criminal Procedure Code, 1973, (Delhi: Eastern Book Company, 1990).
Articles
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Alok Roy, “Right to Anticipatory Bail-Life and Liberty under Article 21 of the Constitution”, 1999 CriLJ Vol.3, at 01.
Reports
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Law Commission of India 41st Report, 1969.
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Law Commission of India 203rd Report, 2007.
State v Kailash, AIR 1953 All 98.
Law Commission of India, 41st Report, 1969.
The Code of Criminal Procedure (Amendment) Act, 2005.
D.D. Basu, Criminal Procedure Code, 1973, (Delhi: Eastern Book Company, 1990) at pg. 979.
R.V. Kelkar, Criminal Procedure, Dr. Chandrashekaran Pillai, ed., 5th edn., (Lucknow: Eastern Book Company, 2008).
Law Commission of India 203rd Report, 2007.
(1979) Cri. L.J. NOC 143 (Gauhati).
Supra note 11 at pg. 307.
M.D. Rijhwani, Law of Anticipatory Bail and Bail, (Mumbai: Law & Rules Publications, 1999) at pg 69.
Alok Roy, “Right to Anticipatory Bail-Life and Liberty under Article 21 of the Constitution”, 1999 CriLJ Vol.3, at 01.
This is also beneficial for the applicant.