R.N.! No. 1999/30 ••

A Monthly Law Journal

PART-l

Mode of Citation2012 (1) ALT (Cd.)

2012 Vol. XLVI

January, 2012

Index 1 to 24Journal 1 to 16, ~ts & Rules Nil.. {c Nij5.C.JuJgments 1 to 128H.C.Judgments 1 to 80

Judgments of Supreme Court, South IndianHigh Courts, Notes on Relent Cases of other

High Courts and ArticlesHONORARY EDITORS

Justice Neelam Sanjiva ReddyJustice P.S. Narayana

EDITORSG. Krishna Moorthy

Manohar Gogia

ASSOCIATE EDITORSAjay Gogia

Neeraj GogiaA. Hanumantha Reddy

PUBLISHED BYADVISORS L.D. GOGIA

T. Pradyumna Kumar ReddyV.V. Kishan

NOTABLE POINTS• A balance sheet is to be prepared in considering the imposition of

death penalty of the aggravating and mitigating circumstances, anda just balance is to be struck (SC) 38

• - Appellate Court is not entitled to dismiss the criminal appeal fordefault nor can it dispo,,' of the appeal on merits without hearingthe advocate. of the accused or a legal 'lid counsel on behalf of theaccused. .. (A.r.H.c.) 32

* The right under Section 162 (2) Cr.F,C., to be released on bail ondefault if charge-sheet is not filed withi~ 90 days from the date of firstremand is not an absolute or indefeasible right The said right wouldbe lost if charge-sheet is filed and would not survive after the filinggl thg ch.rg@ ~h@pt. (50 64

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A.L.T. (Criminal)Vol. XLVI [2012 (1)Journal

ANTICIPATORY BAIL - A CRITICAL STUDYIN THE LIGHT OF SUPREME COURT'S

DECISION IN SIDDHARAM SATLINGAPPAMHETRE'S CASE'

ByProf. (Dr.) Mukund Sarda'

In a judgment' which can be consideredas exhaustive and firm declaration of law inrelation to anticipatory bail, the Apex Courthas taken great pains to minutely discuss thelaw and laid down detailed guidelines.

2. Under the old Code/there was noprovision to grant anticipatory bailor bailin anticipation of arrest. There was differenceof opinion amongst various High Courts,whether they could grant such bail underthe inherent power of the Court' and thepreponderance of the view was that therewas no such power.

3. The Law Commission of India pointedout the necessity of introducing a provisionin the code of Criminal Procedure enabling:he High Courts and Court of Sessions to

rant anticipatory bail', The reasons set out'.. the Law Commission favouringanticipatory bail can be stated as follows:-

(i) Sometimes influential persons tryto implicate their rivals in false casesfor the purpose of disgracing themor for other purposes by gettingthem detained in jail for some days;

(ii) Accentuation of political rivalry, thetendency to implicate in false caseshas been increasingly resorted to;

• Sid dliaram Sotlingap po Mhetre v. Stale ojMaharnslrtrn and others: AIR 2011 SC P.312

- Dean, Principal, New Law College, BharatiVidya Peet University, Pune.

I. Supra Pages 312 to 340._. The Code of Criminal Procedure, 1898.3. See Sec. 562 of the Code of Criminal

Procedure, 1898.~ u- Report dated 29/9/1969, Para 39.9 (Vol I)

25

(iii) Where there are reasonable groundsfor holding that a person accused ofan offence is not likely to abscond orotherwise misuse his liberty, whileon bail; and

(iv) There seems no justification torequire him to submit to custody,remain in prison for some days andthen apply for bail.

4. Provision for anticipatory bail wasmade for the first time in the Code of CriminalProcedure, 19735, This provision containedthe following reasons" for the introduction ofanticipatory bail-

(1) To recognize the importance ofliberty and freedom in a free anddemocratic Country; and

(2) To give recognition to the age-oldprinciple which carried an initialpresumption of innocence in favourof an accused person, until the guiltis established beyond all reasons ofdoubt in the criminal trial

5. The concept of anticipatory bail is thata person, who apprehends his arrest in anon-bailable offence, police custody is theinevitable consequence of such arrest and hecan apply for grant of bail to the Court ofsessions or High Courts. Power of the Policeto arrest is subject to justification for theexercise of power. When an arrest is made, ittotally deprives a person of his 'personalliberty' and the freedom of movement andlocomotion are confined within the four wallsof Po lice cell or prison walls. In AK.Goplan' scase," the Supreme Court observed, 'personalliberty' includes not only immunity fromarrest and detention but also other freedomof speech association etc: , .. "it consists offreedom of movement and locomotion". InKharak Singh's case,8 the Supreme Court ruled

5. See for details See. 438 Cr PC 19736. Statement of objects and reasons as stated in

the Bill7. AIR 1950 SC P.278. Khura): SillS" u. Stille oj UP: AIR 1963 SC 1295.

1 :

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(iii) Order under See. 438 Cr. P.e. woulnot affect the right of Police tc'conduct the investigation;

(iv) Conditions mentioned in Sec. 43;cannot be read into See. 438 Cr. P.c,;

(v) Although the power to release or.·'"anticipatory bail can be describedas of an 'extra-ordinary' characterthis would not justify the conclusiothat the power must be exercised inexceptional cases only. Powers all'discretionary to be exercised in tlWilight of circumstances of each case;~'.

(vi) Initial order can be passed withoutnotice to the public prosecutor.Thereafter, notice must be issuedforthwith and the case ought to bere-examined after hearing. Suchinterim order must conform tcr,requirements of the section ant"suitable conditions should beirriposed on the applicant.

7. The discretionary power vested in thCourt to grant or refuse anticipatory ba'has to be exercised by a careful and wise useand the Courts manned by Judges, who by'virtue of their long experience, they are.ideally suited to do. The Supreme Court haslaid down the factors and parameters iDSibbia's case!' as follows:-

2 A.L.T. (CRIMINAL)

that 'personal liberty' under Article 21includes all varieties of freedom except thoseincluded in Art 19. A contrary view wastaken in Menaka Gandhi's case? wherein it washeld that 'personal liberty' includes allpossible rights which go to constitutepersonal liberty including Article 19. In theState of Andhra Pradesh case," the SupremeCourt held, 'Right to life' is one of the basichuman rights and not even the State has theauthority to violate the right and aselucidated in Khadat Mazdoor Chetanasangath'sl1 case,'ifdignityor honour vanishes'nothing remains in life. In Joginder Kumar'scase," the Su preme Court had the occasion topoint out the irrational and indiscriminatearrests resulting in violation of human rights,stressed the imperative need on the part ofthe arresting officer to clearly record thereasons for the arrest- before arrest of theaccused, in the case diary and in exceptionalcases to record the same immediately afterthe arrest ismade without any loss of time sothat the Court gets the opportunity toproperly consider the case of grant or refusalof bail in the light of the reasons so recordedin the case diary.

6. Dealing with the scope and ambit ofanticipatory bail, the Supreme Court in_!bbia's case," laid down the followingprinciples:-

{ij - c. 438 (1) of Cr. P.e. should beinterpreted in the light of Art. 21 ofthe Constitution of India;

\ill fir o of FIR is not a conditionrece .en t to exercise of power under

Sec.~.x:Cr. P.C;

9. /lknaka Ga'I&::' r'. union of India and another:(1978) J see P.:?-tS; AIR 1978 se P597

10. State of AllIihr~ Prnr.';.>sh v. Chalia RamakrishnaR~ddy (mil olhe-n::~ 2000 se P.2083

11. Khadat Md,,~~Ch"-::.7'Ll Sallgath v. State ofALP.: ;\1 ~ i. : SC P..3!

12. ]ogil1lfe-r KuT1' :-. 5:;.:, :-' . 'P: AIR 1994 SCP.13-!9

13. Curbakst: ::i';j'n 5:':: hl .;r.'; 0/ zers t'. State ofPu l·ai~: l\lR : . .;73 SC r 632

(i) The nature and gravity of theaccusation and the exact role of tlw··accused must be properlycomprehended before the arrest 'r

made;

(ii) The antecedents of the applicantincluding the fact as to whether th!oaccused has previously undergors,imprisonment on conviction by (Court in respect of any cognizableoffence;

(iii) The possibility of the accused to fiei'from justice; . I

14. Supra

26

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JOURNAL

(iv) The possibility of the accused'slikelihood to repeat similar or otheroffences;

(v) Where the accusations have beenmade only with the object of injuringor humiliating the applicant byarresting him/her;

(vi) Impact of granting anticipatory bailparticularly In cases of largemagnitude affecting a very largenumber of people;

(vii) The Court's must evaluate the entireavailable material against theaccused very carefully. The Courtmust also clearly comprehend theexact role of the accused in the case.The cases in which accused isimplicated with the help of See. 34and 149 of the Indian Penal Code, theCourt should consider with evengreater care and caution becauseover-implication in the cases is amatter of common knowledge andconcern;

(viii) While considering the grant ofanticipatory bail, a balance has tobe struck between two factorsnamely, no prejudice should becaused to the free, fair. and fullinvestigation and there should beprevention of harassment,humiliation and unjustifieddetention of the accused;

(ix) The Court should considerreasonable apprehension oftampering of the witness orapprehension of threat to thecomplainant;

(x) Frivolity in prosecution shouldalways be considered and it is onlythe element of genuineness that shallhave to be considered in the matterof grant of bail and in the event ofthere being some doubt as to the

genuineness of the prosecution, inthe normal course of events, theaccused is entitled to an order ofbail;

(xi) The arrest should be the last optionand it should be restricted to thoseexceptional cases where arrestingthe accused is imperative in the factsand circumstances of that case; and

(xii) The Court must carefully examinethe entire available record andparticularly the allegations whichhave been directly attributed to theaccused and these allegations arecorroborated by other material andcircumstances on record.

8. The Supreme Courtl5 gave the followingsuggestions, which might help not in thecurtailment of personal liberty of theaccused in a routine manner:-

(i) Direct the accused to joininvestigation and only when theaccused does not cooperate with theinvestigating agency then only theaccused must be arrested;

(ii) Seize either the passport or suchother related documents, such as,title deeds of properties or fixeddeposit receipts / share certificatesof the accused;

(iii) Direct the accused to execute bonds;

(iv) The accused may be directed tofurnish securities of number ofpersons which according to theprosecution are necessary in viewof the facts of the particular case;

(v) The accused should be directed tofurnish undertaking that he wouldnot visit the place where thewitnesses reside so that thepossibility of tampering theevidence or otherwise influencingthe course of justice can be avoided;and

15. Supra Siddhararn SatJingappa Mahate Para 128

27

3

A.L.T. (CRIMINAL) (Jou.) [20124

(vi) Bank accounts be frozen for smallduration during investigation.

9.The ratio in Siddharam SatlingappaMhetre'scase" clearly lays down the followingprinciples of law:-

(1) Once the anticipatory bail is grantedthen the protection shouldordinarily be available till the end oftrial, unless the interim protectionby way of anticipatory bail iscurtailed, such as

(i) When the anticipatory bailgranted is cancelled by the Courton finding fresh material orcircumstances; and

purposes of evaluation by the higherjudiciary and based on theirexperience;

(iv) While dealing with anticipatory bailcases, if it is found that case againstthe accused is foisted with ultimatemotives, the Court may eventuallyexercise the power to quash theproceedings;

(v) Right to anticipatory bail must bemade a specific fundamental rightby adding to a provision to Art. 21through a constitutionalamendment consistent with thefundamental principles of criminaljurisprudence that every accusedperson is presumed to be innocent,until the guilt is established;

(vi) The duration of anticipatory bailshould be covered upto the point offinal termination of criminalproceedings (including the appeal,revisional proceedings etc);

(vii) While the cancellation of bail ispending, the accused must be givenfair opportunity to contest that thegrounds on which the cancellationis sought do not exist;

(viii) Anticipatory bail may be granted topoor and economically backwardclasses of citizens on the basis ofpersonal security instead ofmonetary consideration;

(ix) It shall be the duty of the State tosafeguard the liberty of theindividual by not opposing suchpetitions unless there are genuinegrounds; and

(x) The Supreme Court must lay downnorms for making the remedy ofanticipatory bail more effective andtake steps to balance with theinterests of society.

(ii) On the ground of abuse of theindulgence by the accused

(2) Limiting the duration ofanticipatory bail for a particularperiod is not valid, as there is nosuch statutory restriction exists"

10.The Supreme' Court's decision inSiddharam SatlingappaMhetre's case" lays downsufficient guidelines to exercise the power ofgrant or refusal of anticipatory bail. Some ofthese guidelines be given statutoryrecognition by suitable amendment toSec. 438 Cr. P.e. The following suggestionsare made:-

(i) Periodic seminars and lectures mustprovide interaction betweenjudiciary and executive for theproper balance between personalliberty and the social interests;

(ii) Some of the important principles ofvital interest to the subject ofanticipatory bail may be givenstatutory recognition. Sec. 438Cr.P.e. may be suitably amendedfor this purpose;

(iii) Cases decided under anticipatorybail may be consolidated for the

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Itc16. Supra Para 11717. Supra Para 13418. Supra

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