Harshit Sharma | Amity Law School, Madhya Pradesh | 4th February 2020
Sushila Aggarwal & Ors. V/s. State (NCT of Delhi) & Anr. SPECIAL LEAVE PETITION (CRIMINAL) NOS.72817282/2017
FACTS OF THE CASE
While hearing the considered matter by the larger bench wherein the contradicting views on the question, “Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail and Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court” was referred to them, the other question which was answered was that regarding the fundamental nature of the Rights enshrined in our Indian Constitution.
ISSUES RAISED
- Whether the restrictions on the fundamental rights shall also be regarded as fundamental or not?
RULING OF THE COURT/ THE COURT HELD THAT
The Judge reproduced a quote of Joseph Story, the great jurist and US Supreme Court judge: “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.”
He said that arbitrary and groundless arrests continue as a pervasive phenomenon and cautioned against restriction of power to grant anticipatory bail by judicial interpretation. The judge concluded his judgment as follows: “The history of our republic – and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.
Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is led, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”
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