The branch of law dealing the Anticipatory Bail is pockmarked by inconsistency and uncertainty, which are perhaps the two worst things that an accused or potential accused person has to contend with. Anticipatory Bail became exactly like the concept of bail in respect of non-bailable offences ,a concession, not a right.
Explained: Whether Anticipatory Bail is a Legal Remedy or Judicial Concession
Panchkula (ABC Live India): The
Anticipatory Bail is a great and peculiar legal tool that lawyers in South Asia
are familiar with [yes, it is not only India which has this remedy folks].
For the uninitiated, Anticipatory
Bail is a legal remedy which enables a person to approach a court asking for
bail "in the event of an arrest".
In India, this is statutorily
provided under Section 438 of the Criminal
Procedure Code 1973 [Cr.PC.], and requires that an accused show
reasons to believe that he/she is likely to be arrested on accusation of having
committed a non-bailable offence. If a court is satisfied in respect of the
same, then it can pass an order directing the police to release the individual
on bail in the event that it decides to arrest her, where this Anticipatory
Bail will come with certain conditions such as ensuring cooperation with
investigation and not coercing witnesses, etc.
The Issue
The primary cause for confusion in
respect of the legal position on Anticipatory Bail is, as one would expect, the
manifold judicial decisions which have expounded on its scope and ambit. After
all, merely reading the text of the provision might lead one to think that
Anticipatory Bail is there for the asking if a person can show reasons to
believe she will be arrested for accusations of committing a non-bailable
offence.
This is hardly so, as a court
"may" grant the relief, and this question of determining the proper
exercise of judicial discretion which has been the subject of controversy in
all these decisions.
The point being made here is not
simply to complain about this confusion or berate courts for it. Instead, what
I want to focus upon is a choice that the Supreme Court of India made in 1980
in respect of the judicial discretion afforded in matters of Anticipatory Bail
in India, when a Constitution Bench of that Court considered the
then-recently-added provision in a batch of petitions which was reported
as Gurbaksh Singh Sibbia v. State of Punjab
& Ors. [AIR 1980 SC 1632 ("Sibbia")].
This was a choice to remain faithful
to the perceived framers' intent behind adding Anticipatory Bail, or to go
beyond these confines by adopting a more purposive interpretive bent.
The Constitution Bench opted for the
latter, and the consequences have been bittersweet. On the one hand,
Anticipatory Bail became an option to secure personal liberty more generally
and it also added teeth to the fundamental right secured under Article 21 of
the Constitution. On the other hand, this approach militated against what one
might imagine as the DNA of the criminal process by denying arrest and thus
allowing police investigations and / or the public interest to be
"frustrated" as a result. Which is why, in spite of it being backed
by a Constitution Bench decision of the Supreme Court, the liberal approach to
Anticipatory Bail continues to raise many eyebrows and often meets with
disapproval from that very Court till date.
The Interpretive
Question in Anticipatory Bail
The framers approach, I argue, was to
keep Anticipatory Bail as a remedy against baseless accusations —
as a defence against being arrested in a malicious prosecution. This was the
context in which such orders had been sought for before various High Courts in
the two decades prior to the Cr.PC. 1973, albeit with limited success. It was
this context which led to the question being presented before the
Commission.
However, the 41st Law Commission
Report (1969) sponsoring insertion of a provision for Anticipatory Bail did not
stipulate this malicious prosecution context as the only purpose
for which such a relief of an Anticipatory Bail order may be needed. The
Commission noted in Para 39.9 that:
The suggestion for
directing the release of a person on bail prior to his arrest (commonly known
as "anticipatory bail") was carefully considered by us. ... The
necessity for 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 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. [Emphasis
mine]
Anticipatory Bail was therefore not only
as a relief against malicious prosecution but also as a potential remedy
against unjust incarceration caused because of the slow pace
at which the legal system worked as people who otherwise be released on bail
would have to "remain in prison for some days" and then apply for
bail. It would be a stretch to consider this as a general expansion as
"some days" come in almost every case.
The only sensible way would be to
treat this suggestion as offering a remedy in the exceptional case, and not
more; doing so would render the distinctions between bail and Anticipatory Bail
redundant which was certainly not what the Law Commission wanted to do.
This view of treating Anticipatory
Bail as the exceptional remedy is only buttressed if one considers the 48th Report which
followed the introduction of the Criminal Procedure Code Bill of 1970 — the
basis of the Cr.PC. 1973 — wherein at Para 31 the Law Commission did retain its
support for the measure but suggested it be an option only in "very
exceptional cases".
When, in 1976, the Supreme Court took
up the limited issue of the exclusion of Anticipatory Bail in the statutory
context of the Defence of India Act 1971 in Balchand Jain [AIR
1977 SC 366], the separate opinions of Justices Bhagwati and Fazal Ali echoed
this view of Anticipatory Bail being fit only for the exceptional case.
The Punjab & Haryana High Court
followed this view in its decision dismissing the petitions filed by Gurbaksh Singh Sibbia and
others [1978 Cri LJ 20].
In a bid to settle the confusion that
it had seen arise, in some measure due to the Law Commission's views and also
due to the charged political context into which Anticipatory Bail was inserted,
the High Court went ahead and offered strict guidelines regulating the scope of
judicial discretion on the point of Anticipatory Bail.
One of the guidelines was to permit
Anticipatory Bail as an option only where an issue of malafide was
being alleged in respect of the accusations levelled against the individual
seeking relief. The High Court considered limiting the scope of discretion as
advisable also because it seriously bought into the argument that an expansive
approach to Anticipatory Bail would stymie investigations. It agreed with the
government counsel that speed was of the essence in investigations where the
initial period of police custody was often critical to solving the case.
Liberal pre-arrest bails would thwart investigations and hurt the public
interest.
The strict guidelines authored by the
Punjab & Haryana High Court seemed to extinguish the remedy of Anticipatory
Bail altogether and met with stern disapproval from the Supreme Court in Sibbia, observing
that it did not see "why the provisions of Section 438 should be
suspected as containing something volatile or incendiary, which needs to be
handled with the greatest care imaginable."
The worries about thwarting
investigations by depriving police of custody during the initial period were
played down by the Supreme Court which was of the view that all investigative
needs could be met with placing conditions requiring that a person cooperate
with police.
There was little discussion about the
value of custodial interrogation to an investigation. Rather than see value in
police custody, it is fair to say that in this post-Emergency, post-ADM
Jabalpur, Maneka Gandhi era of the Supreme Court what
weighed more heavily with the Bench was the threat posed by arbitrary arrests
to personal liberty. One could see the stark difference in approach when,
rather than talk about the importance of custodial interrogation, the Supreme
Court spoke about a need to respect the presumption of innocence of the person
applying for Anticipatory Bail. As a result, the only acceptable approach was
an expansive one and not one which insisted on mala fides to
be established for granting Anticipatory Bail. The Court acknowledged that
there could be problems caused to investigations by Anticipatory Bail, but it
noted that "a wise exercise of judicial power invariably takes
care of the evil consequences which are likely to flow out of its intemperate
use."
The Fallout:
Between a Rock and a Hard Place
In 2020, Sibbia was
endorsed as being the correct and authoritative position of law on Anticipatory
Bail by another Constitution Bench of the Court in Sushila Agarwal [2020
SCC Online SC 98] where, if anything, the Supreme Court went even further
than Sibbia in endorsing an expansive and liberal approach to
Anticipatory Bail. However, the journey from 1980 to 2020 is miles away
from being imagined as a linear progression in the legal position affirming
greater protection for personal liberty. Beneath these lofty pronouncements of
the Supreme Court about Anticipatory Bail lies a great degree of reservation
around this remedy.
Just as an example, how can one
square the law as laid down in Sibbia with the judgment
in P. Chidambaram v. Enforcement Directorate [2019
SCC Online SC 1143] rendered by the Supreme Court in September, 2019, denying
Anticipatory Bail to the petitioner.
Yes, arrests can be unnecessary and
arbitrary, but at the same time they are critical to ensure the criminal
process "works" in the eyes of stakeholders. Arrests and the police
custody which may follow within the first fourteen days thereafter are still
accepted as being the most important part of any investigation. This is a feature
of the system which the Supreme Court itself recognises time and again [see, as
an example, CBI v. Anil Sharma, (1997) and in doing so goes against the logic of Sibbia that
the interests of an investigation can be sufficiently secured even without police
custody. In addition to this, the criminal process endorses logic that
pre-trial arrests and custody, for at least some duration, are justified in
cases of serious crime. Bail has never been only about ensuring that a person
faces trial, but its desirability has historically been linked to the gravity
of accusations.This bent of mind has, naturally, accompanied the exercise of
judicial discretion on the point of Anticipatory Bail. A good example of this
is the 2019 judgment in P. Chidambaram which reflects the
consistent hesitation of courts to allow Anticipatory Bail for economic fraud.
If anything, the reservations in granting Anticipatory Bail in serious crime
appear to be even more pronounced than those associated with the grant of
regular bail in this regard, as is evident from the complete exclusion of
Anticipatory Bail as a remedy in certain statutory contexts — for example,
anti-terrorism laws.
Conclusion
In expanding the idea of Anticipatory
Bail back in 1980, the intention of the Supreme Court in Sibbia was
to make sure that this new tool is not jettisoned due to perceived fears of
certain sections. However, the manner in which the Court sought to realise this
was to leave everything to judicial discretion. The result is a branch of law that
is pockmarked by inconsistency and uncertainty, which are perhaps the two worst
things that an accused or potential accused person has to contend with.
Anticipatory Bail became exactly like the concept of bail in respect of
non-bailable offences — a concession, not a right.
It would be surprising to see
Anticipatory Bail being scaled back to a pre-Sibbia position as a
remedy only in cases of malicious prosecutions, even though this might be the
most desirable way to make sense of the legal position. This perspective still
continues to inform the law, in my opinion, and in practice it might still be
the most common category of cases in which Anticipatory Bail is granted. It
could well be argued that this perspective neatly explains why courts remain
hesitant to accept Anticipatory Bail in contexts where the accusation comes not
from private parties, but from government officials who are presumed to do
their job correctly. However, the recognition of other residual categories of
deserving cases for the grant of Anticipatory Bail is seen as too important to
give up, and Sushila Aggarwal underscored that the Court still
sees Anticipatory Bail as being a potential tool to help reduce arbitrary
arrest and detention. Of course, just not a very good tool. As a result, it is
fair to imagine Anticipatory Bail continuing to seem like going to play slots
in a casino and hoping to get lucky till the system somehow moves past its
preference for arrests and pre-trial custody of accused persons.
This post is written by Abhinav Sekhri on his Blog “The Proof of Guilt” republished in the interest of justice
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