In a ruling with wide-ranging implications, the Supreme Court said as arbitrary arrests continue to be pervasive, the discretionary power of courts to grant anticipatory bail cannot be curtailed and such protection can extend till the end of trial.
Pointing to arrests during the freedom movement when people were jailed for protesting against British rule, the SC lamented that arbitrary arrests are still common with ordinary citizens bearing the brunt while the interests of powerful individuals are protected.
Adjudicating on the extent of protection to an accused under anticipatory bail, a five-judge Constitution bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat unanimously held that there should not ordinarily be a limited or a fixed period for such an order.
“The spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens, and often times at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438,” the court said. Provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
“Despite several Law Commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts in granting pre-arrest or anticipatory bail, especially regarding the duration,” Justice Bhat said.
Anticipatory bail plea could be moved even before FIR filing: SC
In this context, the bench said it would not be in the larger interest of society if the court, by judicial interpretation, limits the exercise of such power. Justice Bhat warned that the danger lay in the discretion of the courts, advisedly kept wide, shrinking to a “very narrow and unrecognisably tiny portion”, frustrating the objective behind the provision.
The court noted that it had stood the test of time and referred to the colonial-era Jallianwala Bagh massacre and other incidents where protesters were brutally suppressed and jailed for long.
The bench said anticipatory bail does not end generally at the time and stage when the accused is summoned by court, or after framing of charges, but can continue till the end of trial. “However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so,” the bench said.
It held that anticipatory bail application could be moved by a person even before filing of an FIR and held that the court examine the seriousness and gravity of the offence to impose any condition on the petitioner, if necessary.
Overturning the apex court’s earlier ruling that no restrictive conditions at all can be imposed, the bench said, “The need to impose other restrictive conditions would have to be judged on a case-by-case basis and depending upon materials produced by the state or investigating agency.” Such conditions should not, however, be imposed in a routine manner in all cases. “Likewise, conditions which limit grant of anticipatory bail may be granted if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.”
The bench said that Section 438 amounts to parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. “Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty,” it said.
In significant observations, it held that life and liberty are cherished attributes of every individual.
