University Institute of Legal Studies

Supervised by: Compiled by:

Dr. Amrit Dhaliwal Rittika Dattana

Session: 2012-13 B.com LL.B (Hons.)

5th Semester

Roll no.-145/11

Code of Criminal Procedure

Comments on the case

Jai Prakash Singh v. State of Bihar, 2012

(Question regarding grant of Anticipatory Bail for serious offences)

Acknowledgement

This project has been made for the purpose of covering a part of the syllabus of the Code of Criminal Procedure of India as prescribed by Panjab University.

I hereby, acknowledge my mentor, Dr. Amrit Dhaliwal, for her expert guidance and views in each and every aspect.

Without her help, making of this project would never have been possible.

Compiled by:

Rittika Dattana

B.com LL.B (hons.)

Roll no-145/11

Table of Cases

1. Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors., 2010

2. Brij Nandan Jaiswal v. Munna Jaiswal & Anr., 2008

3. Sumit Mehta v. State of N.C.T. of Delhi, 2013

4. Balchand Jain Vs. State of M.P., 1976

5. Bihar mid-day meal tragedy case , 17th July, 2013

6. Gudikanti Narasimhulu case (1977).

7. Gurbaksh Singh Sibbia v The State of Punjab, AIR 1980,

8. Maneka Gandhi v. Union of India, 1978

Case Summary

The case in nutshell is that Jai Prakash Singh, the appellant is the brother of the deceased Shiv Prakash Singh, who lodged the FIR on 5.6.2011 after 2 hours of his brother’s death. The FIR was lodged under Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred as ‘I.P.C’). It was reported that when after closing his medicine shop at 10 PM the deceased was going home on his motorcycle, he was chased by the aforesaid respondents on a motorcycle and was then stopped by them. The respondents had opened indiscriminate firing at the deceased which resulted in his death on the spot after receiving 5 bullet injuries on his person. It was observed through the FIR that the said respondents were having some dispute with the complainant and the deceased and had also threatened them to kill them few days back.

The respondents had applied for the anticipatory bail at the Sessions Court but, however, their application was rejected by the learned Sessions Judge after considering the facts, witnesses, and the time of lodging of FIR and the investigation details.

The said respondents then filed Miscellaneous Criminal Petitions for the grant of anticipatory bail under Section 438 Cr.P.C. before the Patna High Court. The said applications were granted anticipatory bail on the grounds that the FIR itself made evident that there was some previous dispute between the parties which led to a quarrel and the accused had fair antecedents.

The Supreme Court considering the aspects of FIR and anticipatory bail, and setting aside the High Court’s decision, cancelled the grant of anticipatory bail to the respondents and made clear the grounds on which the anticipatory bail cannot be granted at all.

Facts and Judgments

(As in Supreme Court Reports,2012)

Jai Prakash Singh Vs. The State of Bihar & ANR. etc.

[Criminal Appeal Nos. 525-526 of 2012 arising out of SLP (CRL.) Nos.304-305 of 2012]

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. These criminal appeals have been preferred against the judgments and orders dated 19.9.2011 and 25.10.2011 passed by the High Court of Judicature at Patna in Crl. Misc. Nos.. 28318 and 33546 of 2011, by which the High Court has enlarged the respondents Rajesh Kumar Singh @ Pappu Singh and Sanjay Kumar Singh @ Mintu Singh on anticipatory bail under Section 438 of Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.')

3. Facts and circumstances giving rise to these appeals are that :

A. On 5.6.2011, the appellant Jai Prakash Singh lodged an FIR of Laheria Sarai Case No. 304 of 2011 under Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred as 'I.P.C.'), alleging therein that the informant/complainant and his elder brother Shiv Prakash Singh were having a medicine shop for the last 2-3 years. On 5.6.2011 around 10.00 p.m., his brother closed the shop and proceeded towards his house on his motorcycle. He was chased by the aforesaid respondents on a motorcycle and stopped. They opened indiscriminate firing and thus, he died on the spot. In the FIR, it was also alleged that the said respondents had threatened the complainant to kill him and his brother 10-15 days ago as there had been some old dispute of accounts between the parties.

B. As per the post-mortem report, the deceased received 5 bullet injuries on his person and he died because of the same. The said respondents had applied for anticipatory bail, however, their applications stood rejected by the learned Sessions Judge vide order dated 11.8.2011 observing that in the investigation, a strong motive had been found against the said respondents and there were certain affidavits of eye-witnesses to the effect that the said respondents were the assailants.

C. Aggrieved, the said respondents filed Miscellaneous Criminal Petitions for grant of anticipatory bail under Section 438 Cr.P.C. before the Patna High Court. The said applications have been allowed passing the impugned orders granting them anticipatory bail on the grounds that the FIR itself made it evident that there was some previous dispute

between the parties which led to a quarrel and the accused had fair antecedents. Hence, these appeals.

4. Shri Dvijendra Kumar Pandey, learned counsel appearing for the appellant, has submitted that the High Court committed grave error while granting anticipatory bail to the said respondents without considering the gravity of the offence and the manner in which the offence had been committed and without realising that the FIR had been lodged promptly within a period of two hours of the incident and both the said accused persons had been named therein. Thus, the impugned judgments and orders are liable to be set aside.

5. On the contrary, Ms. Kavita Jha and Ms. Prerna Singh, learned counsel appearing for the said respondents and the State of Bihar, have opposed the appeals contending that the High Court has imposed very serious conditions while granting the anticipatory bail. The order does not require any interference at this stage. The appeals have no merit and are liable to be dismissed.

6. We have considered the rival submissions made by the learned counsel appearing for the parties and perused the record.

7. The provisions of Section 438 Cr.P.C. lay down guidelines for considering the anticipatory bail application, which read as under: "438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on an 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."

8. In view of the above, it is mandatory on the part of the court to ensure the compliance of the pre-requisite conditions for grant of anticipatory bail including the nature and gravity of the accusation.

9. Admittedly, the deceased had received several gun shot injuries. According to the post-mortem report, the following injuries were found on the person of the deceased: "

A . Abrasions:(1) 1 1/4" x1/4" 1"- right and enter post of forehead (2) 1/4" x 1/4" 1/2 "x 1/4" and 1/2" X 1/10" in the lower 1/2 of the left leg (3) 1/4 " x l/4" right kneecap.

B. Fire Arm injuries

1. entry wound 1/4 dia with inverted contused margins and abrasions. Collar placed on the outer aspect of the right arm 2" proxical to elbow - passed thro' arms breaking the bone into pieces and lacerating the to come out thro' exit wound 1/3" x 1/9" with even in the middle and inner portion of arm. Another entry wound, 1/5" in dia with abrasion collar, inverted margin and tattooing around (1-1/2 " x 1-1/2") was also present 1" distal to the preventing entry wound and come out through the same exit wound.

2. Entry wound - 1/4 " dia with inverted contused margin an abrasion collar in right anterior axillary line 5" below nipple - right 8th intercortal space- right lobe of liver mes entry- small intestine at one place - came out through exit wound 1/3" in dia in lower left iliac fosa in the axilary line with inverted margin.

3. Entry wound 1/4" dia with contused inverted margins and abrasion collar placed in the left iliac fosa- color at one place- small intestine at one place- came out this exit would >" x 1/2" on right abdominal flank with everted margin, in anterior oscillary line 9" bellow nipple.

4. Entry would 1/3" in dia with contused inverted margin and abrasion collar over upper and inner part of left and soft tissue of the arm to came out through the exit wound 1/3" in dia with everted margin on the back of left arm 3" above (proximal) elbow.

5. Entry wound 1/4" in dia on the back of abdomen 4" outer to midline at T12 level, with inverted and contused margins and abrasions collar mesentry large intestine at one place exit through a wound 1/4" dia with inverted margin in the hand.

Along the tracks, the. tissue were lacerated. Fluid blood red clots were seen inside abdominal cavity about 1000 cc in volume. Organs appeared pale. Both sides of the heart were partially full and the urinary bladder was found full. Stomach contained about cc food without alcoholic smell.

Skull and brain showed nothing particular. Opinion Death resulted from hemorrhage and both due to fire arm injuries mentioned above."

10. The learned Sessions Judge did not consider it proper to grant anticipatory bail, rather rejected the same after considering the submissions made on behalf of the said accused

persons observing that the court had perused the Case Diary, para 90 of which revealed a very strong motive. There was material against the said accused in the case diary. The deceased had received multiple abrasions and 5 gun shot injuries, thus, it was not a fit case to enlarge the accused on anticipatory bail.

11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/complainant.

12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37).

13. There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. However, neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail.

14. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., AIR 1995 SC 1198, this Court considered the nature of the right of anticipatory bail and observed as under: "We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21."

15. While deciding the aforesaid cases, this Court referred to the 41st Report of the Indian Law Commission dated 24th September, 1969 recommending the introduction of a provision for grant of anticipatory bail wherein it has been observed that "power to grant anticipatory bail should be exercised in very exceptional cases".

16. Ms. Kavita Jha, learned counsel appearing for the accused/respondents has vehemently advanced the arguments on the concept of life and liberty enshrined in Article 21 of the Constitution of India placing a very heavy reliance on the observations made by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312, and submitted that unless the custodial interrogation is warranted in the facts and circumstances of the case, not granting anticipatory bail amounts to denial of the rights conferred upon a citizen/person under Article 21 of the Constitution. We are afraid the law as referred to hereinabove does not support the case as canvassed by learned counsel for the accused-respondents. More so, the Constitution Bench of this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, while summing up the law in para 368, inter-alia, held as under: "Section 20(7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the Rules made thereunder, cannot be said to have deprived the personal liberty of a person as enshrined in Article 21 of the Constitution." (See also: Narcotics Control Bureau v. Dilip Prahlad Namade (2004) 3 SCC 619). Therefore, we are not impressed by the submissions so advanced by learned counsel for the accused-respondents.

17. This Court in Siddharam Satlingappa Mhetre (supra) after considering the earlier judgments of this Court laid down certain factors and parameters to be considered while considering application for anticipatory bail : "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused 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;

iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

v. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vi. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;

vii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

viii. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

ix. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. 124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."

18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305).

19. The case at hand, if considered in the light of aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused.

20. The High Court erred in not considering the case in correct perspective and allowed the said applications on the grounds that in the FIR some old disputes had been referred to and the accused had fair antecedents. The relevant part of the High Court judgment impugned

before us reads as under: "Considering that the only allegation in the First Information Report is that there was previously some dispute between the deceased and the petitioner and they had quarrelled on account of the same, let the petitioner above named, who has fair antecedents, be released on anticipatory bail........"

21. In the facts and circumstances of this case, we are of the considered opinion that it was not a fit case for grant of anticipatory bail. The High Court ought to have exercised its extraordinary jurisdiction following the parameters laid down by this Court in above referred to judicial pronouncements, considering the nature and gravity of the offence and as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very lightly brushed aside the fact that FIR had been lodged spontaneously and further did not record any reason as how the pre-requisite conditions incorporated in the statutory provision itself stood fulfilled. Nor did the court consider as to whether custodial interrogation was required. The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors the grounds provided in Section 438 Cr.P.C. itself suffers from non- application of mind and therefore, cannot be sustained in the eyes of law.

22. The impugned judgments and orders dated 19.9.2011 and 25.10.2011 passed by the High Court of Judicature at Patna in Crl. Misc. Nos.28318 and 33546 of 2011 are, thus, set aside. The anticipatory bail granted to the said respondents is cancelled. Needless to say that in case the said respondents apply for regular bail, the same would be considered in accordance with law. With the aforesaid observations, appeals stand disposed of.

..........................................J. (Dr. B.S. CHAUHAN)

..........................................J. (JAGDISH SINGH KHEHAR)

New Delhi,

March 14, 20121

Questions under Consideration

1 http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1940, 29 Sept,2013, 2.34 AM

1. What is an Anticipatory Bail?

2. Why was the concept of anticipatory bail introduced in the Indian Criminal

Laws?

3. What are the conditions to be satisfied to grant an Anticipatory Bail and

which law provides for it?

4. When can an Anticipatory Bail be granted?

5. When can an Anticipatory Bail be not granted?

6. Can court exercise its discretion while granting Anticipatory Bail?

7. Can the Anticipatory Bail once granted be cancelled by the Court?

8. What if the Sessions Court rejects the application and the applicant is arrested?

9. Is promptness in filing of FIR was the main reason for cancellation of the

grant for Anticipatory Bail in the said case?

10. Is not granting of Anticipatory Bail in case of serious crimes is violative of

right under Article 21 of the Indian Constitution?

1. What is Anticipatory Bail?

Anticipatory bail, a term not found in any Indian legislation, refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. As observed in Balchand Jain Vs. State of M.P., 19762,`anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest.

The ‘anticipatory’ labeling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted only after arrest (and becomes operative subsequently) but the latter is granted before arrest and hence is operative from the moment of arrest. One also has to understand that regular bail comes into operation once a person is remanded to judicial custody but the anticipatory bail comes into operation immediately on arrest and prior to being remanded to police custody and or judicial custody.3

In Balchand v. State of MP4, it was held that the object of s. 438 is that the moment a person is arrested, if he had already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigorous of jail even for a few days.

Further explanation of Anticipatory bail was given by Supreme Court in the case Gurbaksh Singh Sibbia v The State of Punjab5, AIR 1980, SUPREME COURT 1632, explaining that a person can apply for anticipatory bail even after the FIR is filed, but not if the person has been arrested.6

In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code).

2 1977 AIR 366, 1977 SCR (2) 523 http://www.academia.edu/2761041/Anticipatory_Bail, 10th Oct, 2013, 8.57 PM4 Ibid.5 1980 AIR 1632, 1980 SCR (3) 3836 http://www.keralalawyer.com/contents/anticipitory_bail.php, 30th Sept, 2013, 12.17 AM

A non-bailable offence is one for which the police if not empowered to release the arrested person on bail (except under certain special circumstance not dealt with here).7

2. Why was the concept of anticipatory bail introduced in the

Indian Criminal Laws?

The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.

The necessity of introduction of Section 438 of the Criminal Procedure Code was arises mainly because sometimes influential person try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.8

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 his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.9

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral

7 http://www.mightylaws.in/283/preemption-cure-anticipatory-bail-section-438-criminal-procedure-code, 27th Sept., 2013, 12.02 AM

8 41st Report, Law Commission of India, 24th September, 1969, para 39.9, Volume I9 http://myblog-rajbhu.blogspot.in/2012/12/anticipatory-bail-section-438-crpc-1973.html, 30th Sept.,2013,

12.45 AM

to a socially sensitized judicial process. — Justice V.R. Krishna Iyer, in the Gudikanti Narasimhulu case (1977). 10

3. What is the law concerning Anticipatory Bail?

The provisions concerning anticipatory bail are to be found in section 438 of the Criminal Procedure Code (CrPC), 1973. The section is reproduced as follows:“438. Direction for grant of bail to person apprehending arrest.

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that court may, if it thinks fit, direct 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:-

i. the nature and gravity or seriousness of the accusation as apprehended by the applicant;

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

iii. the likely object of the accusation to humiliate or malign the reputation of the of the applicant by having him so arrested, and

iv. the possibility of the applicant, if granted anticipatory bail, fleeing from justice;

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 Sessions, 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

10 Gudikanti Narasimhulu v. Public Prosecutor, A.P., (1978) I SCC 240

officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) 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.

(1B) 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.]

2. When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including :

i. A condition that the person shall make himself available for interrogation by a police officer and when required;

ii. A condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,

iii. A condition that the person shall not leave India without the previous permission of the court;

iv. Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.

3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall

issue a bailable warrant in conformity with the direction of the court under sub-section (1).

Sub-section (1) of section 438 mainly talks about what anticipatory bail is, who can apply for it (those apprehending arrest for non-bailable offences) and who is to be applied to (the Court of Sessions or the High Court).

Sub-section (2) talks about how the Court issuing an order under s. 438 can attach certain riders to it. These are listed out as ss. 438(2) (i), 438(2) (ii), 438(2) (iii) and 438(2) (iv).

Sub-section (3) empowers:i. The Police to grant bail if the arrested person is arrested without warrant.ii. The magistrate to issue a bailable warrant (in light of an anticipatory bail order).

4. When can an Anticipatory bail be granted?

It can be given when a person apprehends arrest for a non-bailable offence (refer to the First Schedule of CrPC for the list of offences labelled thus). It is given in those circumstances when the court believes that there is a possibility that the accused has been falsely implicated and that his freedom will not hamper the investigation of the crime. Having said that, bail granted under s. 438 may be cancelled at any time if the investigation is hampered or if a condition under the order is violated by the arrested person.

It is important to note that the attendance of the person apprehending arrest is compulsory at the final hearing.

In the present case, peeping into the facts and evidences of the case, the High Court granted the anticipatory bail to the defendants , explaining that the details lodged in the FIR proved that there was an existing past rivalry between the accused and the appellants and the condition could be as if the defendants were not at fault . Contrary to this decision, the Supreme Court dismissed the

application for anticipatory bail explaining that promptness in lodging of the FIR was enough to prove that the complaint was reliable and no false accusation was labeled on the defendants and held that the decision.

5. When can an Anticipatory bail be not granted?

There are certain circumstances where applications for anticipatory bail are normally refused. These include:

For offences/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defense of India Rules, 1971.

The provisions of s. 438 are normally refused to those accused of particularly heinous offences like murder and rape.

In The Court observed that “We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.”

The Constitution Bench in Sibbia's case 11has clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case.

In the recent Bihar mid-day meal tragedy case held on 17th July 2013, in which 23 children died after eating the contaminated midday meal served in a government school, the district court denied the granting of anticipatory bail to the husband of the Principal of the school after considering the facts and circumstances of the case. In this case, Meena Devi, the Principal of the school and her husband (the Main accused), Arun Kumar, are filed under murder and criminal conspiracy, were absconding since the tragedy took place. When the Principal got arrested, Arun Kumar filed for anticipatory bail.12

11 supra12 http://www.dnaindia.com/india/1868226/report-bihar-mid-day-meal-tragedy-absconding-husband-of-school-

principal-files-anticipatory-bail, 6th October, 2013, 11.38 AM

6. Can court exercise its discretion while granting Anticipatory Bail?

Yes the Courts can exercise their discretion while granting Anticipatory Bail but the discretion should not be arbitrary and should be strictly according to the rules laid down in the laws.

In Balchand Jain Vs. State of M.P., 197613 the Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and the High Court.

The words in s. 438 which proclaim 'for a direction under this section' and 'Court may, if it thinks fit, direct' clearly shows that the Court can grant the anticipatory bail if it is satisfied and the decision has to be guided by a large number of considerations, including those mentioned in s. 437.

In Gurbaksh Singh Sibbia’s case (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab. The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary power to grant anticipatory bail.

http://www.sify.com/news/bihar-school-principal-seeks-bail-in-mid-day-meal-case-news-national-nhyrumedfbd.html, 6th October, 2013, 11.39 AM

http://zeenews.india.com/news/bihar/bihar-mid-day-meal-deaths-school-principal-denied-bail_874248.html, 6th October, 2013, 11.50 AM

13 supra

In Sumit Mehta v. State of N.C.T. of Delhi, 201314, the Supreme Court held that the direction of the High Court to deposit 1 Crore (in the name of the complainant and further directing to keep the FDR with the investigating officer (IO), for the offences alleged to have committed under Section 420, 467 , 468 and 471 of IPC) as a condition precedent for granting anticipatory bail is evidently onerous and unreasonable.

The Court said “ The words “any condition” used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed”.15

7. Can the Anticipatory Bail once granted be cancelled by the Court?

Yes, if the Court which has the power to grant anticipatory bail also has the power to cancel the same if the prosecution/police authorities are able to show as to how the person released on anticipatory bail is not abiding by the conditions put down by the Court and also if the person given the benefit of anticipatory bail is not co-operating with the police authorities for investigation.

This has been observed in Jai Prakash Singh’s case that since Supreme Court was not justified by the decision taken by the High Court, the SC using its discretionary power had cancelled the anticipatory bail which had been earlier granted by the HC.

14 CRIMINAL APPEAL NO.1436 OF 2013, SC15 http://zeenews.india.com/news/delhi/depositing-rs-1-crore-as-bail-condition-in-unreasonable-

sc_876310.html, 6th October, 2013 3.16PM

In Brij Nandan Jaiswal v. Munna Jaiswal & Anr., 200816, it was observed that it is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse.

8. What if the Sessions Court rejects the application and the applicant is arrested?

Let us assume that the application for anticipatory moved in the Sessions Court is rejected and the applicant still apprehends that before moving his bail application in the Hon’ble High Court, the police arrest the applicant, in such instances well the lawyer can move an application praying for interim protection to be extended till filing of the same before the High Court. But, this is a discretionary power in the hands of the Sessions Judges and needs a good argumentative skill.

Lastly the most important thing is that anticipatory bail should not be moved merely because the applicant feels to do so because it is not the provision which allows the crime to be committed and the protection be given but only in cases where there is a substantial chance of the applicant being falsely involved or the liberty of the applicant shall stand at stake for no fault of his own. Lastly I would personally like to state that the weapon namely the anticipatory bail which has been vested in the hand of the litigants, is for sure a double edged weapon which requires to be handled very cautiously as it make give relief to the one who really makes out his case but can be really harsh if the same stands rejected and would prove a boon to the investigating authorities.

9. Is promptness in filing of FIR was the main reason for cancellation of the

grant for Anticipatory Bail in the said case?

16 CRIMINAL APPEAL NO. 2087/2008Arising out of SLP(Crl.) No. 5126 OF 2007

Yes, the promptness in filing of FIR was the main reason for cancellation of the grant of Anticipatory bail in Jai Prakash’s case because it was held by SC that since the FIR was filed spontaneously, therefore it was more reliable than any other witness.

Promptness in filing of FIR is assumed to be free from bias, reliable and without any unnecessary modifications and therefore this fact as such cannot be ignored while granting the anticipatory bail to the defendants.

In Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors., 2010,17 the anticipatory bail was granted by the SC on the account that the FIR was lodged eight days after the incident took place. It was held that proper analysis of the averments in the FIR leads to irresistible conclusion that the entire prosecution story seems to be a cock and bull story and no reliance can be placed on such a concocted version.

10. Is not granting of Anticipatory Bail in case of serious crimes violative of

right under Article 21 of the Indian Constitution?

The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

17 CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009), SC

"Once a provision of law enacted by Legislature is held to be not unconstitutional or not violative of Article 21 of the Constitution, the same stands on statute book and has to be read as it is and court while interpreting the same, cannot read what is not provided for in the provision nor can it ignore what is provided for in the provision,"

-Justice A.L. Dave while deciding the question of Anticipatory Bail.18

It has been held in Jai Prakash’s case that not granting of anticipatory bail is not violative of Article 21 of the Indian Constitution since the right to have an anticipatory bail is not a fundamental right but a statutory right.

But in S.S. Mhetre and Sibbia case (supra) it was also observed that if the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi’s case 19 in which the court observed that 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.20

18 http://legallycorrect.blogspot.in/2013/01/ashis-nandy-atrocity-and-anticipatory.html, 6th October, 2013, 6.56 PM

19 Maneka Gandhi v. Union of India, 197820http://lawstudentscollective.blog.com/2011/06/03/supreme-court-on-the-law-of-bails-ss-mhetre-decision-2010/, 6th October, 2013, 6.37 PM

Bibliography

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news-national-nhyrumedfbd.html

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unreasonable-sc_876310.html

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