The protection of anticipatory or pre-arrest bail cannot be limited to any time frame or “fixed period” as denial of bail amounts to deprivation of the fundamental right to personal liberty in a free and democratic country, a Constitution Bench of the Supreme Court ruled on Wednesday.
A five-judge Bench, led by Justice Arun Mishra, acknowledged that anticipatory bail helps thwart influential powers from implicating their rivals in false cases. Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy of detention in jail for days on end and disgrace to their reputation. The court recorded its amicus curiae and senior advocate Harin Raval’s argument that anticipatory bail is all the more needed now because there is an accentuation of political rivalry and “this tendency is showing signs of steady increase”.
“The life or duration of an anticipatory bail order does not normally end at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial,” the court held.
The questions referred to the Constitution Bench were twofold: whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court, and whether the life of anticipatory bail should end when the accused is summoned by the court.
The 133-page judgment includes two separate and concurring opinions by Justices M.R. Shah and S. Ravindra Bhat. Justices Mishra, Indira Banerjee and Vineet Saran joined them to issue guidelines for courts while granting anticipatory bail.
“The history of our Republic — and indeed, the freedom movement — has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence,” Justice Bhat wrote on the importance of the provision.
“The spectre of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438,” he added.
“The normal rule (for grant of anticipatory bail) should be not to limit the order in relation to a period of time,” Justice Shah observed.
The court held that protection against arrest should inure in favour of the accused. Restricting the protection would prove unfavourable for the accused.
However, it is open for a court to impose appropriate conditions for grant of anticipatory bail if the specific facts or the features of the offence involved demands it. Courts have to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice. But restrictions/conditions can be imposed only on a case-to-case basis.
An application for anticipatory bail should be based on concrete facts and not vague or general allegations. The application should also contain bare essential facts relating to the offence and why the applicant reasonably apprehends arrest. It should also have “his side of the story”.
“These are essential for the court to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed... Special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner in all cases,” the Bench pointed out.
The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long as there is reasonable basis for apprehension of arrest and clarity of facts.
Nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting the relief in terms of time or upon filing of FIR or recording of statement of witnesses by the police during investigation or inquiry, etc.
Courts, depending on the seriousness of the threat of arrest, need not wait to hear the prosecution’s version before granting anticipatory bail. Issuance of notice to the prosecutor can be done simultaneously while granting protection from arrest to the accused.
The grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought. It is open for the police to move court for arrest of the accused if there is any violation of bail conditions.
