Bail Matters

Anticipatory bail is subject to extraordinary equitable discretion of Court

An order of anticipatory bail virtually converts a non bailable offence under the Code to a bailable one subject, of course, to appropriate conditions which the Court can in the interests of justice impose. The circumstances are not enumerated in detail in Section 438 of the Cr. P.C. on proof of which such extraordinary equitable discretion can be invoked. The legislature has thought it fit to leave it to the trained intuitions and informed discretion of superior Courts to identify the cases where such extraordinary equitable discretion can and ought to be invoked. Such powers are certainly there for the superior Courts. But such powers have to be invoked only sparingly and in exceptional cases in aid of justice. Such powers are not to be invoked as a matter of course. Compelling reasons must be shown to exist to justify the invocation of such powers. Without intending to be exhaustive it can certainly be stated that a reasonable apprehension that the powers of arrest vested in the State and its officials are likely to be abused or misused for oblique or mala fide reasons must be shown to exist before such powers are invoked. Even in cases where legitimate invocation of such powers of arrest would lead to undeserved hardships and prejudice of an exceptional variety to the accused persons such powers can be invoked. Apprehension of torture while in custody of the police is also one circumstance in which such powers can be invoked subject to conditions to enable the accused to surrender before the Judicial Magistrate. In short, it is only in exceptional cases and in the interests of justice that such powers can and ought to be invoked by a Court. Even when such powers are invoked, appropriate conditions must be imposed, A reference to Section 438 of the Cr. P.C. will in this context be of crucial relevance.

438. Direction of 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 t non-bailable offence, he may apply to the High Court or the Court of Session for ft direction under this lection; and that Court may. if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(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 as 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).

(Emphasis supplied)

 Section 438 of the Cr. P.C. clearly mentions that conditions can be imposed. Four conditions are enumerated in Section 438(2) of the Cr. P.C. But they are only indicative and not exhaustive. Any other condition as is necessary can also be imposed. The statutory provision as well as the observations of the Constitution Bench of the Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, leave no doubts on this aspect. The decisions in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, : K.L. Verma Vs. State and Another, : Nirmal Jeet Kaur Vs. The State of Madhya Pradesh and Another, : Sunita Devi Vs. State of Bihar and Another, and Adri Dharan Das v. State of W.B. (2005) SCC (Cri) 933 : 2005 Cri LJ 1708 do show that a condition that the order is limited in time and the accused must within the stipulated period surrender before the Magistrate having jurisdiction and seek regular bail can be imposed. I had considered the question whether an order of anticipatory bail must always be limited by a condition regarding the period of time during which such conditions are remain in force in Jyothish v. State of Kerala ILR 2005 Ker 200. That question has been considered in detail. It may not be necessary to impose such a condition invariably in all orders, it was held.

 I am certainty of opinion that when an order of anticipatory bail is granted u/s 438 of the Cr. P.C. invoking the extraordinary equitable discretion available to the Court, there must inevitably be a direction ordinarily that the accused persons should appear before and co-operate with the Investigators. It would be preposterous to leave the Investigating Officer in the lurch even after the grant of an order of anticipatory bail in favour of the accused persons and to expect him to go in search of the accused persons. An obligation to appear before the Investigators and co-operate with the investigation is, according to me, an inevitable condition to be imposed ordinarily at the time of grant of anticipatory bail. Omissions to imposed such condition, according to me, would certainly be abdication of the responsibility which a Court exercising powers u/s 438 of the Cr. P.C. must discharge. One who seeks the extraordinary equitable discretion must certainly in equity be compelled to co-operate with the system in the criminal investigative process.

Categories: Bail Matters

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