Anticipatory Bail

Anticipatory Bail

Anticipatory bail or grant of a bail to a person apprehending arrest is presently enshrined under s.438 CrPC. The provision allows a person who has reason to believe that he may be arrested for committing a non-bailable offence, to apply 259 Supreme Court directed that jurisdictional Magistrates/Sessions Judges hold a sitting each week in every jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of s.436A CrPC by identifying and passing release orders for prisoners who are eligible for release under the provision. 258 Bhim Singh v. Union of India (2015) 13 SCC 605. 257 National Legal Services Authority, Standard Operating Procedure (SOP) for Undertrial Review Committees (UTRCs), WP(C) 406/2013 - In Re: Inhuman Conditions in 1382 Prisons. 256 Inhuman Conditions in 1382 Prisons, In re, (2016) 3 SCC 700 (Supreme Court order dated 05.02.2016). before the High Court or the Sessions Court seeking a direction that in event of such arrest he be released on bail. Cl.484 BNSS seeks to replace s.438 CrPC. a. Reverting to pre-2005 provision The changes proposed to the provision on Anticipatory Bail include replacement of the sub-section (1), and deletion of the proviso to sub-section (1), and sub-sections (1A) and (1B). In doing so, Cl.484 seeks to revert to the provision on anticipatory bail as it existed before 2005. Vide the 2005 Amendment the following changes were made to the provision on anticipatory bail: a. S.438(1) CrPC was amended to insert language, which provided guidance to courts regarding factors to be considered while deciding grant of anticipatory bail. A non-exhaustive list of these factors was enumerated in 1(i) to (iv).260 b. The amended sub-section (1) also stated that an application can either be rejected, or an interim order granting anticipatory bail may be made. c. A proviso was inserted which said that where no interim order has been passed or where the application seeking anticipatory bail has been rejected, it shall be open to an offi cer incharge to make arrest without warrant, if there are reasonable grounds for such arrest. d. Sub-section (1A) was inserted which states that notice with a copy of an interim order under s.438(1) shall be sent to the public prosecutor with a notice of at least seven days, to give a reasonable opportunity of being heard when the application is fi nally heard. e. Sub-section (IB) was inserted which provides that if the public prosecutor makes an application or if the court considers it necessary, the presence of the application seeking anticipatory bail shall be obligatory at the time of fi nal hearing of the application and passing of the fi nal order. The changes made to the provision on anticipatory bail in 2005 came under widespread scrutiny from lawyers and jurists. The amendment to s.438 was believed to interfere with the independence of the judiciary and rights of the accused. Firstly, the proviso to s.438 was criticised as it permitted an offi cer 260 The factors enumerated in the subsections are– (i) the nature and gravity of offence, (ii) antecedents of the applicant, (iii) possibility of the applicant to fl ee from justice, and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested. in-charge to arrest the applicant without warrant in the pendency of the anticipatory bail application. Secondly, sub-section (1B), gave an opportunity for the accused to be arrested in court, should the application be rejected. Thus, it was argued that the amendments to the section defeat the purpose behind s.438 CrPC. As a response to this criticism, the Law Commission discussed the amended provision,261 and recommended inter alia that the proviso, as well as sub-section (1B) be omitted.262 The BNSS does away with these sub-sections which have been problematised. At the same time, it also removes the grounds to be considered while deciding grant of anticipatory bail. However, given that these grounds were instructive in the fi rst place, their removal may not change the manner in which courts decide applications seeking anticipatory bail, especially in light of the vast jurisprudence on the subject.263 The BNSS also does away with the language of s.438(1) CrPC which implies that the initial order made in an application for anticipatory bail is only an interim order. Read together with the s.438(1A), the provision required for the interim order to then be sent to the public prosecutor and to allow them an opportunity to argue against grant of anticipatory bail. However, in practice courts tend to grant an ad interim order on anticipatory bail before hearing the fi nal application, even before the 2005 Amendment, this may not substantially affect the manner in which anticipatory bail applications are decided. 263 Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694: the Supreme Court laid down factors to be considered while deciding an application seeking anticipatory bail, which go beyond the factors mentioned in s.438 CrPC. These included the possibility of the accused fl eeing from justice, the alleged role of the accused in the offence, material available against the accused, impact of grant of anticipatory bail etc. 262 The Law Commission of India had also recommended that an explanation be inserted clarifying that a fi nal order on an application seeking anticipatory bail shall not be construed as an interlocutory order; and that new subsection be inserted stating that conditions may be imposed upon an applicant while grant of anticipatory bail – including condition that the person make themselves available for interrogation when required, condition that a person does not make inducement, threat, promise etc to any person acquainted with facts of the case, condition that the applicant shall not leave India without permission of the court, and any such other condition which may be imposed under s.437(3). These recommendations had not been incorporated in the CrPC. 261 Law Commission of India, ‘Two Hundred and Third Report on Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)’ (Law Commission Report No. 203, 2007). 93b. Offences for which Anticipatory Bail cannot be granted An inexplicable amendment proposed in the BNSS is in the scheme of offences prescribed under s.438(4) CrPC.264 This sub-section provides that the provisions of the section will not apply to any case involving arrest of a person accused of committing an offence under ss.376(3), 376AB, 376DA, and 376DB IPC. These sections pertain to offences involving rape of minor women. The corresponding provision, Cl.484(4), however, precludes those persons who are accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS from being granted anticipatory bail irrespective of the age of the victim. A similar amendment has been proposed to the scheme of offences mentioned in s.439(1A) as well, which states that the presence of the informant or a person authorised by the informant is obligatory while considering an application of bail of a person accused of offences under ss.376(3), 376AB, 376DA, and 376DB IPC. Like Cl.484(4) above, the corresponding provision to s.439(1A) CrPC in BNSS, i.e. Cl.485 (IA) also applies to bail application of a person accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS. 264 This subsection was inserted in the CrPC by s.22