Aryan Dhar
Anticipatory Bail is the third form of bail in the legal system of the judiciary, and it is extremely important in the Indian legal system. If an accused suspect that he or she has been wrongly accused of a crime or has been refused bail for a crime that is not bailable in nature, he or she can appeal to the High court or the Sessions court to correct the error and can do so
on the following grounds:
1. The essence and seriousness of the accusation.
2. The individual’s record included whether he had ever been arrested by the court without being convicted of a crime.
3. The applicant’s desire to remain anonymous during the trial.
4. If the charge was made with the intent to injure or intimidate the complainant by charging him, drop the application right away or give a temporary order granting anticipatory bail.
It should also be noted that anticipatory bail is issued at the discretion of the court of law/the judge following a thorough examination of the facts of the case and the circumstances at hand, and it is not guaranteed to the convicted. On the recommendation of the public prosecutor and if the court of law deems it appropriate, the involvement of the accused pursuing anticipatory bail is required.
There are primarily two requirements for filing for Anticipatory Bail in a court of law.
1. The felony or offense committed should not be bailable.
2. There may be a strong suspicion that the accused would be apprehended by the police for such a non-bailable offense.
The group will apply for anticipatory bail until the arrest has been made and all conditions have been met. This can be seen in the case of Badresh Bilimbi Seth v. State of Gujarat, where anticipatory bail was linked to Article 21 of the constitution.
According to this situation, anticipatory bail is a pre-legal detention procedure that states that if the person in whose favor the anticipatory bail is given is later convicted on the charge on which the bail was issued, he may be released on bail under section 438 of the CrPC 1973. As a result, after all the pre-requisites for anticipatory bail have been met, the court will proceed to extend it to the offender.
Sushila Agarwal v. State of Delhi
“Certain guidelines set up and questions answered about anticipatory bail”
This was another landmark anticipatory bail case in which two big questions regarding the length and life period of an anticipatory bail were raised.
1. Should anticipatory bail immunity be extended for a limited time only, so that an accused can plead for regular bail in front of the trial court before it expires?
2. Whether or not the life span of an anticipatory bail should end before the trial in the court of law begins
o In response to the first question, the five-judge bench unanimously decided that “the immunity given to an individual under Section 438 CrPC should not invariably be limited to a defined period; it should inure in favor of the accused without any time limitation.”
o The Hon’ble court ruled on the second issue. In most cases, the life or period of an anticipatory parole order does not terminate until the defendant is summoned by the court or until the charges are filed but can extend before the trial is completed. It still has the option to do so if there are any unusual or extraordinary circumstances that require the court to limit the period of anticipatory bail.
3. Furthermore, an accused who has not agreed to cooperate with the prosecution, has been an absconder, or has been a declared convict as specified by section 82 of the Code, should not be given anticipatory bail. In the case of State of M.P. vs. Pradeep
Sharma, the Supreme Court claimed the same.
Manish Jain v. Haryana Pollution Control Board
“A person who has been released on bail is now in the law’s constructive custody.”
The Apex Court recently explained the complexities of anticipatory bail application maintainability in an order dated 20.11.2020, in this case. In this case, a plaintiff was granted regular bail in a lawsuit under Section 15 of the 1986 Environmental Protection Act. As a result of the non-appearance, the bail was eventually revoked. He was charged under Section 174A of the IPC 1908, which resulted in his detention and subsequent release on bail.
The petitioner then filed a separate leave petition with the Supreme Court, requesting anticipatory bail considering the suspension of his normal bail under Section 15 of the Environmental Protection Act. An individual released on bail is now in the constructive custody of law, according to the Apex Court.
The court of law went on to say that if the statute allows the individual in question to return to prison for specific circumstances, the appeal for anticipatory bail in the apprehension of detention would be denied. There should be no fear of the arrest since the
individual is still in the law’s constructive custody.
Mohammad Nizam vs state of Himachal Pradesh
“A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for purpose of the investigation.”
This was opined by the single judge bench of the Himachal Pradesh High Court in this case whose facts were: On Tuesday, the Himachal Pradesh HC refused anticipatory bail to a man facing arrest in a case for reportedly being a part of a scam that targeted underage girls for the purpose of selling them abroad after endearing them for marriage.
Even if there is no need for custodial questioning in both scenarios, an offender will not be eligible to anticipatory bail, according to a single judge bench headed by Justice Vivek Singh. The requirement of custodial questioning, according to the Court, is not the only justification for the rejection of the bail application. The Court has stated that a balance must be struck between the right to personal liberty and the right of an Investigating Agency to prosecute and apprehend a suspect for the purpose of investigation.
The Court’s decision:
Taking into consideration the entire facts and circumstances of each case before me, as well as the arguments of learned Deputy Advocate General and learned counsel for the petitioner, as well as the essence, severity, and importance of the problem for the manner in which a girl was managed to be transported/travelled from Shimla to a remote village in Uttar Pradesh in an organized way, and also for seeking or dismissing the idea of a sexual assault, As a result, the case is rejected with a directive to the petitioner to promptly report to the prosecuting officer or police and the request for anticipatory bail is to be denied.
Rahna Jalal v. State of Kerala
“No bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act, 2019”
Facts
A Muslim woman filed a FIR on August 27th, 2020, claiming that her husband announced talaq three times at their home on December 2019, in violation of Section 498-A read with Section 34 of the IPC and the Muslim Women (Protection of Rights on Marriage) Act 2019. Following that, he married for the second time.
Although refusing to issue anticipatory bail initially, the Kerala High Court noted that if the prosecution’s argument is valid, the first plaintiff is now living life with his second wife while the de facto claimant is still alive.
However, the High Court’s order did not state why the petitioner, who is the complainant’s mother-in-law, was refused anticipatory bail.
The first petitioner is the complainant’s husband, and the second petitioner is the first petitioner’s mother. The Apex Court had declined to hear the first petitioner’s Special Leave Petition on December 3, 2020, and he was given time to return to the appropriate court of jurisdiction and request for standard bail.
The Court was now asked to determine if the HC was correct in declining to give anticipatory bail to the petitioner, who happens to be the complainant’s mother-in-law.
Court’s decision
The three-judge bench of Dr. D.Y. Chandrachud, Indu Malhotra, and Indira Banerjee, JJ, has ruled that there is no bar to providing anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, given that the competent court hears the married Muslim woman who has filed the case before granting the anticipatory bail.
Section 7(c) does not seem to be an outright bar to the granting of bail, according to the legislative document. On the contrary, if the Magistrate is convinced that there are appropriate reasons for granting bail to such an individual” and if the condition of hearing the married Muslim woman upon whom talaq is pronounced is met, the Magistrate can grant bail.
Hence, notwithstanding the fact that Section 7 begins with a non obstante clause that applies to the CrPC, a plain reading of Section 7(c) would indicate that it does not limit the Magistrate’s power to grant bail, except and except for the requirement that the married Muslim woman upon whom talaq is pronounced be heard and the requirement of the Code be met.
Md. Nadeem v. State of UP
“A person who takes the risk of dissemination of blasphemous messages is not entitled to get the discretion of the Court exercised in his favour.”
The Allahabad High Court’s Lucknow Bench has rejected the anticipatory bail plea of a person suspected of spreading propaganda regarding the Ram Temple’s cornerstone laying ceremony in Ayodhya to foster enmity between two religious’ groups. “In a democratic state, the universal right to freedom of speech and expression is not an unconditional licence to harm and damage fellow citizens’ religious sentiments, faiths, and values,” Justice Chandra Dhari Singh observed.
The UP Police have charged Nadeem, an influential member of the Common Front of India (PFI), with spreading enmity amongst various communities based on faith, among other things, under Section 153-A of the Indian Penal Code.
According to the complainant, Nadeem was spreading the message that since the foundation laying ceremony of the Temple in Ayodhya is taking place on mosque property, every Muslim must come forward to protect the Babri Masjid site.
As per the FIR, there was a risk of communal strife between two cultures because of this propaganda, and communal unity as well as civil stability could be jeopardized. In this situation, the claimant’s comments/propaganda directed against one religious minority have the potential to incite one community or party against another. As a result, the crime punished under Section 153A IPC seems to be attracted to the circumstances of the event,
according to the order.
In the other side, Nadeem claims that many of the charges in the FIR are baseless, and that it is just an excuse to hide the illegality of his unlawful and unauthorized arrest by police officers.
Shesh Nah Yadav v. State of Jharkhand
Government employee denied anticipatory bail for posting derogatory remarks against Malaysian woman regarding spreading coronavirus In view of the evidence and submissions in this case, Rongon Mukhopadhyay J. denied
anticipatory bail to the ground.
The details of the matter at hand are that the complainant, a public servant, made negative remarks about a woman of Malaysian descent in a Facebook post that was then shared on WhatsApp, triggering comments directed at a single group. The applicant anticipates his incarceration in accordance with the current case and asks the Court for anticipatory bail.
Advocate Kumar Amit represented the appellant, and A.P.P Ruby Pandey represented the respondent. The accused, who was a government employee, took a screenshot of his Facebook post and shared it on a WhatsApp forum, inciting offensive remarks towards a certain culture, according to the court. The accusations are significant, and the fact that they were made by a
government official further adds to the gravity of the situation. As a result of the above evidence and findings, the court determined that petitioner is not eligible for anticipatory bail.
Heiratami Biam v. State of Meghalaya
Anticipatory bail under the POCSO act
W. Diengdoh, J., dismissed an anticipatory bail application was filed after the Complainant, as the victim’s mother, filed a FIR under Section 3(a)/4 of the POCSO Act claiming that the appellant sexually assaulted and abused her minor daughter, during which she was sent for medical evaluation. During the preliminary investigation, the petitioner went to the Court of the Special Judge (POCSO), who originally issued temporary bail to the petitioner and called for the case diary, but after hearing the parties, dismissed the petitioner’s appeal and ordered him to be imprisoned throughout the case. As a result, the instant appeal was lodged with this Court, requesting that pre-arrest bail be granted on the grounds that he anticipated arrest.
K. Khan and A.H. Kharwanlang, counsel for the defendant, argued that the victim’s statements stated clearly that she was raped by the appellant, and the plaintiff’s statement states his acknowledgement to the fact that he had sexual intercourse with the victim, who was a minor, and thus the commission of an offence under Section 3 of the POCSO Act had
occurred.
The plaintiff had not strongly denied that he had perpetrated the suspected offence, but he had attempted to cast doubt about it by claiming that it was quite doubtful that he had committed the offence because the place of incidence was the servants’ quarter, where there were about other employees staying there, and it was also shown by perusal of the medical reports that the plaintiff had perpetrated the offence.
Conclusion
The nature and applicability of the law on anticipatory bail have been repeatedly clarified by the courts. Because Section 438 was used in the Code as an alternative to false arrests and detentions, it is in the general interest for Section 438 to be interpreted equally under Art 21 of the Indian constitution to prohibit unconstitutional and unfair restrictions on personal
liberty.
The simple ratio in the case of Sushila Aggarwal seems to be consistent with Section 438 of the Code’s object and meaning. Personal liberty, which is at the core of the law and fundamental to the principle of anticipatory bail, was considered and granted due weight by the Constitution Bench in Sushila Aggarwal.
In Mahatma Gandhi’s everlasting words, “Depriving a man of his natural liberty and denying him the necessities of life is greater than deprivation of the body; it is poverty of the mind, the inhabitant of the body.”