Anticipatory bail should not be limited to exceptional cases only

Asmita Kuvalekar | Government Law College, Mumbai | 12^th April 2020. 

SIDDHARAM SATLINGAPPA MHETRE V STATE OF MAHARASHTRA AND OS (CRIMINAL APPEAL NO 2271 OF 2010 ARISING OUT OF SLP (CRL) NO 7615 OF 2009) 

FACTS OF THE CASE: 

Denied anticipatory bail under Section 438 of the Criminal Procedure Code, 1973, the appellant approached the Supreme Court for relief. The entirety of the case relied upon two simple arguments: liberty under Article 19 and Article 21 of the Indian Constitution should be upheld by all Courts and a person praying for anticipatory bail is not yet a convicted offender. Therefore, the wording of the provision should not be unnecessarily read into by the Courts, thereby creating limitations that the law makers did not intend. 

This case becomes significant for its extensive review of the historical background of Section 438 CrPC as well as the true, judicial understanding of ‘liberty’, all to understand if limitations can be imposed upon the impugned Section. The Court also lays down important guidelines for judges dealing with anticipatory bail applications in the future. 

ISSUE: 

1. Whether Section 438 is subject to all the limitations of Section 437? 
2. Whether anticipatory bail should be granted only up to the stage of trial?

JUDGEMENT: 

The Apex Court undertook a comprehensive analysis of the circumstances in which Section 438 was introduced. The principal reason behind its incorporation was the Legislature’s intent to protect innocent people from false charges, levied upon them by powerful individuals who have an influence over the system. It was noted that the wording of the provision itself clarifies that anticipatory bail is an interim provision and as such, it can be reversed by the Court granting it. Thus, it is an important and progressive change in the Criminal Code that simply seeks to protect people who apprehend incarceration. 

Evidently therefore, anticipatory bail is not protection from a fair judicial process but simply a means of affording liberty to people who otherwise cooperate with investigations and are not prone to escape. It is not final and irrevocable in nature. In fact, it is subject to judicial discretion and can be cancelled if the Judge is satisfied that new facts and circumstances warrant the arrest of the person who had been granted bail under Section 438. Additionally, Courts are free to impose conditions on the bail, as it deems fit. 

This provision ensures that all citizens enjoy their fundamental rights of liberty (Article 19) and dignity (Article 21) to the utmost. The Court observed that imprisonment comes at a social cost and loss of reputation. Thus, any legislative mechanism allowing the courts to uphold people’s freedom without jeopardizing the rest should be a welcome initiative. Moreover, a person who has been granted anticipatory bail is simply an undertrial, he has not been finally convicted yet. In certain cases, the applicants are simply under an apprehension or perceived danger of imprisonment. In such cases, the well-established principle of innocence until proved guilty beyond all reasonable doubt has to be applied by the Courts and there can be no exceptions thereby. Of course, Section 438 is wide enough to allow Courts to weigh each situation in its own terms and determine if the applicant is worthy of anticipatory bail based on past record, opportunity to escape etc. But it cannot be said that the ambit of Section 438 is so rigid and narrow that it must only be applied to “special cases”. 

Referring to its monumental decision in Gurbaksh Singh Sibbia and others v State of Punjab¹, the Supreme Court reiterated that statutes must first be interpreted as it is. The impugned Section is clear in its message and does not contain a freedom so volatile that it requires extreme precaution or imaginary limitations that the Legislature did not originally make or intend. Unless vagueness or other material issues hamper the interpretation of a provision, Courts must not scale down a provision that is clearly meant to have a wide and generally applicable purview. 

The Court further examined the question of anticipatory bail given only till trial, compelling the accused to file for bail de novo once the trial began. It was held that unless extenuating circumstances can justify such limited application, the Courts would be in error if they granted anticipatory bail only up to the trial stage. Such an intermittent, broken grant of bail goes against the personal liberty envisaged by the Legislature under Section 438. 

Even in practice, this would lead to unreasonable scenarios of going into custody simply to apply for regular bail from a trial Court. The test of fairness and reasonableness is intrinsically woven into the modern understanding of Article 21. Since Section 438 has itself been created to further the liberty anticipated by Article 21, any unfairness arising out of its wrong application undermines the very purpose of its existence. In doing so, it undermines the noble legislative intent behind the provision too. Thus arrest should be the last resort while bail should be upheld as far as possible. 

For these reasons, the Court reinforced its unequivocal stand taken in Sibbia’s case that for a provision as wide in amplitude as Section 438 that confers a great deal of discretion on the Courts, there can be no fixed formula or pre-determined set of rules for its application. It was ruled that neither the grant nor the life of anticipatory bail should be unnecessarily limited. Instead an illustrative list of guidelines for matters to be evaluated before granting anticipatory bail were laid down in this judgement. Consequently, the appeal was allowed. 

1. (1980) 2 SCC 565