"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.
ORIGIN 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 Vs.
(1991) I SCC 286 - 297 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 opinion 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.
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 Gurbsksh Singh Sibbia V/s.
State of Punjab (1980) 2 SCC 565 our 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 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.
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 sub-sections have been substituted namely - "(I) 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 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 sub-section (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 - Section 438 is being 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 anticipartory 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 of present day, it has become 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 very necessary that provisions of anticipatory bail should be liberalized and it is felt that some wiser-heads would oppose and agitate this amendment, which needs a relook.