Of liberties and pre-arrest bail

Basic liberty is the essence of human civilisation. The protection and safeguards accorded under the expression ‘due process of law’ as well as ‘Right to Life’ are the hallmarks of modern Constitutional democratic governance. At the same time, the compelling reasons to arrest/ detain the accused/suspect of a crime by the ‘State’ interfere with these above mentioned basic liberties in order to balance the competing interests of the society.

The law relating to grant of ‘pre-arrest bail’ by Constitutional Courts (ie Supreme Court & High Courts) in certain circumstances, depending upon the peculiar facts, provides for common relief to those accused/suspects. It enhances the idea/ethos of ‘Constitutional Courts’ as custodian of basic liberties. However, in certain cases, liberal approach of the Constitutional Courts towards grant of ‘pre-arrest bail’ is being misused to obtain regular bail from the subordinate courts in a systemic manner.

‘Pre-arrest bail/anticipatory bail’ to the accused is a device to secure the individual’s liberty, and is neither a passport for the commission of crimes nor a shield against any or all kinds of accusations likely or unlikely. The order dated August 3, 2017 by the Supreme Court of India in Rukmani Mahato vs State of Jharkhand by a bench comprising Justice Ranjan Gogoi and Justice Navin Sinha  aims to cure  one of the peculiar practices of obtaining regular bail before concerned trial courts on the strength of ‘pre-arrest bail’ granted by the Constitutional Courts.

The Supreme Court sought to distinguish the two different stages involved in two different proceedings while obtaining ‘pre-arrest bail from the Constitutional Courts’ and ‘regular bail before the trial courts’. It clarified that when the matter is pending before superior courts, there can be no occasion for the accused to appear and surrender before the trial courts to seek regular bail on strength of such interim bail.

The SC termed such surrender and bail application under such circumstances as nothing but an abuse of the process of law by the concerned accused. It noted the dichotomy which may arise in subsequent stages of two proceedings as mentioned below:

“Once a regular bail is granted by a subordinate court on the strength of the interim/pre-arrest bail granted by the superior court, even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court meaningless.”

The law of bail seeks to balance two conflicting interests, namely, the obligation to shield society from the hazards of those committing and repeating crimes, and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence — presumption of innocence and the sanctity of individual liberty.

In Gurubaksh Singh Sibbia’s case (AIR 1980 SC 1632), the five judge bench of the Supreme Court held that while granting anticipatory bail the courts must weigh the combined effect of pros & cons.

It observed:
“The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and ‘the larger interests of the public or the state’ are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.”

The Law Commission of India under the Chairmanship of Justice Dr BS Chauhan in its recent Report No 268  titled Amendments to Criminal Procedure Code, 1973 — Provisions Relating to Bail recommended that the anticipatory bail must be granted with utmost care in the following words (page 94):

“…anticipatory bail must not only be granted with caution but must also be made operative for a limited period of time. Further, given the special position that Section 438 of CrPC enjoys in the Code and the potential for misuse, any order passed under this section must be accompanied with reasons for rejecting or granting anticipatory bail.”

So, the Constitutional Courts while granting the pre-arrest bail order, may, specify the duration of such protection to the accused.

The Supreme Court also deprecated the prevailing practice followed by subordinate courts that when an application for pre-arrest is pending before a superior court — the regular bail should not be granted alone on the strength of such interim order of the Supreme Court of India. At the same time, it underlines the principle of ‘independence & discretion’ of the subordinate courts to consider the application for regular bail in an impartial manner taking stock of ground realities and uninfluenced by such pre-arrest protection given by superior courts.

The order by the Apex Court on the above issue would certainly curb the abuse of process of law and malady of obtaining regular bail from the trial courts/subordinate courts in a fraudulent manner, ie on strength of pre-arrest protection order given by superior courts as a stamp to obtain the regular bail.

The author, a professor, is a Member of Law Commission of India.
Views expressed are personal.