Supreme Court on Anticipatory Bails

Without going into the specific facts of the case, the crux of the matter is that the High Court of Judicature at Allahabad passed an Order wherein it was breathing hot and cold at the same time. Vide the same Order, on one hand, it rejected the Application for Anticipatory Bail under S. 438 of CrPC and on the other hand, it directed the Applicant to “….appear and surrender before the court below within 90 days from today and apply for bail, their prayer for bail shall be considered and decided as per the settled law… Till then, no coercive action shall be taken against the applicants.”

This Order passed by the High Court was challenged before the Supreme Court on the ground that once the final relief of pre-arrest was declined to the Applicants, there is no protection available to the Applicants under S. 438 of CrPC and hence, the High Court could not have contemplated grant of any such protection. Thus, the moot question to be answered by the Court was as follows: -

“Whether the High Court, while dismissing the anticipatory bail applications of the respondents, could have granted them protection from arrest?”

Extent of Power Exercisable by the Courts under S. 438 of CrPC

The Supreme Court discussed the case of Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, wherein following propositions were laid down: -

1. Grant of Anticipatory Bail under S. 438 of CrPC is ordinarily not limited to a fixed time period and should enure in favour of the accused till the conclusion of the Trial.

2. Normal conditions under S. 437 (3) read with S. 438 (2) should be imposed while granting Anticipatory Bail and if there are specific facts and circumstances, it is open for the Courts to impose any appropriate condition or introduce any peculiar features depending upon the necessity.

Section 438 of CrPC

“Section 438. Direction for grant of bail to person apprehending arrest

(1) Where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:—

…..

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(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 think fit, including -

….

(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).”

What Happens when Application under S. 438 is Rejected?

According to the Court, when an Application under S. 438 of CrPC is rejected, it is open to the Police to arrest the Applicant and the Proviso to S. 438 (1) of CrPC does not create any restrictions on the same rather it is merely clarificatory in nature that unless an individual has obtained some protection from the Court, the police may arrest him.

The Hon’ble Court also observed that grant or rejection of an Application under S. 438 has a direct bearing on the fundamental right to life and liberty of an individual under Article 21 of the Constitution of India and therefore, the provision “needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief.”

Coming to the question relating to the provision of law under which the Court may issue relief to an Applicant after dismissing their Anticipatory Bail Application, the Court observed that such a power does exist and Section 482 of CrPC “recognizes the High Court's inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.”

It was further opined by the Court that it cannot remain oblivious to the peculiar situations that may arise and “there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court.” In such cases, even if a case for Anticipatory Bail is not made out, then also the Court has powers to pass appropriate orders. Similar power is also vested with the Supreme Court of India under Article 142 of the Constitution of India.

Thereafter the Court passed a word of caution that “such discretionary power cannot be exercised in an untrammelled manner” and the Court must necessarily narrowly tailer the Order to protect the interests of the Applicant while taking into consideration the concerns of the Prosecution and such an order must be a reasoned one.

Held by the Court

The Court finally held that the Order passed by the High Court of Judicature at Allahabad wherein it rejected the Application under S. 438 of CrPC but granted protection from arrest to the Applicant without assigning any reasons for the same, fails to withstand the legal scrutiny for want of reasons and non-consideration of the concerns of the Prosecution/Investigating Agency. Further, it was also held that the period of 90 days granted to the Applicant cannot be considered to be a reasonable one in the facts of the case. Hence, the Order passed by the High Court was set aside to the extent of granting protection for 90 days to the accused persons.

Concluding Remarks

I feel that this case emphasizes the importance of Section 482 of CrPC. Even in the earlier post, we discussed that even in relation to orders framing charges or refusing to discharge, the High Court has the power to look into the same both under S. 397 and S. 482 of CrPC. Thus, where no power could be traced in relation to an exercise of power, then such power could always be traced under S. 482 of CrPC provided that the exercise of power is in a just and reasonable manner.

Through this case, the Supreme Court also made clear that even if an Application for Anticipatory Bail is rejected, then also the High Courts are not precluded from granting tailored protection to accused persons. The life and liberty of a person has been put at a higher pedestal by the Supreme Court than the rights of the Prosecution to investigate into the matter. According to the Court, there must be a semblance of balance between the two while passing of any such Order.

There are countless situations where the accused persons may take benefit of this Order. For example, if a person is apprehending arrest but is about to get married, then he can approach the Court and even if his case does not fall within the strict contours of S. 438 of CrPC, the High Court may grant him interim protection till the time he gets married. Or if there is a death in the family of a person apprehending arrest, then also the benefit of the culmination of the interpretative process that has transpired in this case could be taken. Life is complex and so are its needs. I agree with the underlying reasoning of the Court that there cannot be a straightjacket formula and when the statute itself confers inherent powers on the High Court, then the same must be exercised beneficially in favour of the individuals though an inane approach bereft of reasoning must be avoided.