Feb 20, 2020

Anticipatory Bail Applications

Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law‘.’[1] It is this idea of personal liberty that the remedy of anticipatory bail seeks to protect. The concept of anticipatory bail was introduced for the first time with the enactment of the Code of Criminal Procedure, 1973 (CrPC) under Section 438. Though Section 438 of the CrPC does not use the words ‘anticipatory bail’, the remedy under Section 438 of the CrPC is commonly known as ‘Anticipatory Bail Application’. The reason for making an application for anticipatory bail is the apprehension / anticipation of arrest for commission of a non-bailable offence; even if no First Information Report has been filed.

The earlier Criminal Procedure Code (of 1898) did not expressly provide courts with the power to grant an anticipatory bail or pre-arrest bail. Prior to the introduction of Section 438, there was difference of opinion amongst courts on whether courts had an inherent power to grant bail to a person apprehending arrest. Therefore, the Law Commission of India in its 41st Report recommended the introduction of a provision for grant anticipatory bail. The need to introduce this ‘special power’ was felt by the Law Commission of India, since it was noted that influential persons / unscrupulous litigants try to implicate their opponents in false cases for disgracing them or for other reasons by getting them detained in jail. Such incarceration could lead to the undoing of the universally accepted principle of ‘innocent until proven guilty’.

Since it was by the Law Commission of India that it was not feasible to exhaustively enumerate conditions governing grant of anticipatory bail, it was left to the courts to decide conditions, as per their discretion, under which anticipatory bail could be granted. The amendment to Section 438 in 2005 and a series of judicial pronouncements have laid down the following broad principles to be considered by courts while evaluating an application for grant of anticipatory bail:

i. nature and gravity of the accusation;

ii. antecedents of the applicant including the fact as to whether he/she has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. possibility of the applicant fleeing from justice;

iv. possibility of the applicant repeating similar or other offences;

v. possibility of the applicant tampering with the witness/ evidence; and

vi. where accusation appears to have been made to humiliate or malign the reputation of the applicant by having him so arrested.

While granting anticipatory bail to a person, Courts impose conditions on the applicant, such as, the applicant:

i. shall make himself available for interrogation by a police officer as directed by the Court or as required by the police officer;

ii. shall not leave India without the previous permission of the Court;

iii. shall submit his / her local residential address, native address and contact numbers to the concerned police station; and

iv. shall not make any inducement, threat, promise, etc. to any person acquainted with the facts of the case.

More recently, a constitutional bench of the Supreme Court[2] observed that the protection under Section 438 cannot be limited for a fixed period and that it should inure in favour of the applicant without any restriction of time. The Supreme Court also noted that such reliefs can continue till the end of trial, though if there are peculiar facts which require a court to limit the period of the protection, a court may do so. Further, the Supreme Court also remarked that ‘it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise’ of the discretionary power granted to Courts under Section 438 or this would frustrate the objective behind the provision.

Though the intent of Section 438 is to safeguard the personal liberty of individuals, in cases of economic offences and other cases of larger public importance, Courts have been reluctant in exercising its powers under Section 438. One possible reason for this judicial trend is the massive economic frauds which India has witnessed in the past few decades, where the main perpetrators have fled the country and evaded prosecution. Summing-up this situation, the Supreme Court, recently in the case of former finance minister Mr. P. Chidambaram[3], observed that a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest.

Author:
Asadulla Thangal

Footnotes:
[1] Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240
[2] Judgment dated January 29, 2020 in Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr.
[3] P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24

AUTHORS & CONTRIBUTORS

  • Associates:

    Asadulla Thangal

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