NEEDED UNAMBIGUOUS GUIDELINES ON ANTICIPATORY BAIL

Hemant Kumar, Advocate

Recently, the Law Commission of India submitted its 203rd report to the Central Government on section 438 of Code of Criminal Procedure (CrPC), 1973 as amended by an Amendment Act of 2005. The aforesaid section which deals with grant of “Anticipatory Bail” or Pre-arrest bail was although sought to be amended by enactment of CrPC (Amendment) Act, 2005, but its enforcement was kept in abeyance owing to countrywide protest by legal fraternity which lamented against the proposed changes as being violative of legal rights available to citizens. The government referred the matter to the Law Commission in September, 2006 for obtaining its expert opinion over the issue. The Law Commission has in its report recommended omission of controversial proviso permitting arrest of person on the basis of accusations apprehended in his anticipatory bail application in the event of either rejection of plea or non-issuance of an interim order by the court. The report also recommends dispensing away with condition of personal appearance of the applicant when final order on his anticipatory bail plea would be passed by the court. In addition, the Commission has also suggested against the person exercising concurrent jurisdictions of both Sessions and High Court for obtaining anticipatory bail and further recommended that the final order of a court regarding anticipatory bail would not be an interlocutory order, but a final order, against which revision to a superior court would lie. Although the recommendations seem to have addressed the grievances of protesting advocates to a large extent, but in somewhere the Commission has felt short of examining certain other grey areas which ought to have been looked into by it.

The term “Anticipatory Bail” has neither been defined in section 438 of CrPC nor it finds mention anywhere in the Code. Perhaps, this provision was not even provided in the old code viz . Code of Criminal Procedure, 1898. The expression, which was firstly used by the Law Commission in its 41st report of 1969, is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest, if a person has reasons to believe that he may be arrested on accusation of having committed a non-bailable offence. The term ‘Anticipatory bail' is a misnomer in the sense that it does not stay the arrest but is operative in the way that the person shall be released in the event of his arrest. The distinction between an ordinary order of bail and an order under section 438 CrPC (anticipatory bail) is that while the former is granted after arrest, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. The rationale of Law Commission in suggesting such a provision was for providing immunity against arrest to such persons who allege being implicated in false and mischievous cases by their rivals owing to various vested interests. It was recommended that these hapless persons need not submit themselves to custody before applying for bail. But in its subsequent 48th report of 1972, the Law Commission cautioned that the power to grant anticipatory bail should be used sparingly and not in a casual or routine manner and for reasons to be recorded. Also, initially the court should grant only interim relief and final orders should be passed only after issuing notice of hearing to Public Prosecutor. Although the Parliament provided provision for grant of anticipatory bail when CrPC was enacted in 1973 but subsequent recommendations of Law Commission regarding initial grant of interim relief and hearing before pronouncing final orders were not incorporated in original Code.

Ever since the provision of anticipatory bail has found place in the statute, it has been resorted to mostly by the highly influential and political personalities rather than poor strata of society giving rise to feeling that some are “more equal than others” in the legal process. The concept of anticipatory bail also means package of “Big Fees” for those seasoned criminal lawyers, who employ all their professional tactics to get an affirmative order in favour of their client. Nowadays, when it has become a common feature to institute false and vexatious cases on political opponents by the power-that-be, anticipatory bail has proved to be boon for victims of political vendetta. But anticipatory bail has also been criticized in the sense that it hampers proper investigation of serious offences owing to the fact that holders of anticipatory bail often misuse their freedom to criminally intimidate and even assault the witnesses and tamper with valuable evidence. Armed with anticipatory bail, they are in a comparatively better and comfortable position than in the contrary situations where a Damocles' sword of being arrested hangs over them. Although in grant of anticipatory bail, the courts ought to maintain a harmonious balance between the individual liberty and societal interest operating through system of administration of justice, it has been noticed that sometimes the courts are more inclined in favour of the former and sometimes the latter. Though exercise of judicial discretion or wisdom should not be called into question, but it would be wise if a uniform approach is adopted by judiciary over this aspect which should withstand public scrutiny.

The first and foremost ambiguity regarding grant of anticipatory bail is regarding its duration. Though in all logical sense, anticipatory bail ought to be only an interim remedy till the regular bail application is disposed of by the concerned competent court but in absence of any such clear limitation in section 438 CrPC, certain judicial pronouncements have regarded that an order of anticipatory bail may not be limited to a particular period of time ( Gurbaksh Singh Sibbia v. State of Punjab , AIR 1980 SC 1632). Consequently, the anticipatory bail can also be granted till the person apprehending arrest exhausts all his legal remedies before all superior courts, although this view has been highly deprecated in subsequent verdicts of Apex Court. The order of anticipatory bail can also be stretched till the period of conclusion of trial, thus making the provisions of sections 437 and 439 CrPC (relating to grant of regular bail while in custody) as dead letter one. Only last year, when a single judge of Madurai Bench of Madras High Court ruled against grant of permanent anticipatory bail, a Full Bench was soon constituted by the Chief Justice of High Court owing to hue and cry raised by Bar Associations. The Full Bench has since overruled the single Bench order and has held the view contrary to it. Although the Apex Court has held conflicting views on the issue of duration of anticipatory bail, when the point arises to follow the principle of precedence, it is the opinion expressed by a larger Bench that prevails ( Gurbaksh Singh case). This ambiguity needs to be addressed urgently, perhaps with the incorporation of suitable amendment in the statute. The Legislature, in its wisdom, also ought to prescribe a certain time-frame within which the concerned court should dipose of the anticipatory bail application on the lines of CrPC (West Bengal) Amendment Act, 1990 which has provided a time period of thirty days in this regard. This needs to be emulated by the Parliament so that the courts decide the anticipatory bail applications in time.

The next aspect relates to invoking jurisdiction of courts granting anticipatory bail. Though it is a settled legal position, even held by the Apex Court, that the court within whose jurisdiction the offence is alleged to have been committed has the sole discretion to try the offence and grant bail, certain judicial verdicts of various High Courts have held that as the anticipatory bail pleas are against apprehension of arrest and detention, so the court within whose jurisdiction the arrest is apprehended has also got power to grant anticipatory bail even though the case FIR may have been lodged in the jurisdiction of some other court. This point also calls for clarity. Only jurisdictional court(s) needs to be empowered for entertaining bail applications. Next unanswered question is that if the person has been granted anticipatory bail by a superior court, say High Court, on certain conditions, then in the event of his violating such conditions, whether the Sessions Court before whom the trial is commencing has the power to cancel the anticipatory bail? Although Sessions Court has power to do so in case of regular bail but what in case of anticipatory bail granted by High Court?

Also, though it has been held by the Supreme Court in a number of cases that anticipatory bail should not be granted normally in cases of commission of heinous crimes like rape, murder, child abuse, dowry death etc. but owing to conflicting opinions of Apex Court expressed in different verdicts, various High Courts have held different views on the issue. The Supreme Court needs to devise broad and comprehensive clear guidelines with regard to grant of anticipatory bail on the lines of award of death penalty by Trial and High Courts.

As the subject of Criminal Procedure falls in concurrent list of Seventh Schedule of our Constitution, signifying that both Parliament and State Legislatures can legislate on it, several States have from time to time carried out State-specific amendments in the CrPC including a provision relating to grant of anticipatory bail as per their needs and convenience. Pertinent to mention in this regard is the State of UP which has since omitted the provision of anticipatory bail in the State since 1976. The Apex Court has upheld this decision of UP as being Constitutional under Article 254(2) of our Constitution. Similar is the case with State of Jammu and Kashmir which has its own code similar to the old Code viz . CrPC, 1898 with no provision of Anticipatory Bail. The courts in these States have been granting stay of arrests or interim bails in lieu of anticipatory bail, but the practice has not find favour with superior courts. Only recently, the Supreme Court has asked the UP Government for restoring the provision of anticipatory bail in the State so that the High Court may not have to take recourse of section 482 CrPC (Inherent powers) in this regard. So this aspect also needs urgent redressal.

Although the Law Commission has done a marathon and praiseworthy task in carrying out detailed in-depth analysis of subject relating to grant of anticipatory bail, but it would have been wise if it had also addressed the above-mentioned crucial aspects of the issue. The Parliament should give a serious introspection in this regard so as to make the provision of anticipatory bail clear and unambiguous.