Personal liberty is an inherent, crucial, and indispensable entitlement of an individual, acknowledged as a fundamental right according to Article 21 of the Constitution of India. This entitlement is an inherent and essential component of the unchangeable fundamental framework of the Constitution of India. When there is suspicion that an individual has committed a crime (which is punished by the current laws), it is the legal obligation to apprehend them, initiate legal proceedings, and impose punishment if they are proven guilty. An arrest results in the loss of an individual's personal freedom, and obtaining bail typically leads to their release. The notion of bail is intricately connected to the entitlement of individual freedom. The right to obtain bail is derived from the provisions of Sections 436, 437, and 439 of the Code of Criminal Procedure, 1973 ("Code"), as well as the concept of anticipatory bail, which was established by the Law Commission's 41st report.
The former code of criminal procedure of 1898 did not include the notion of anticipatory bail. In its 41st report dated September 24, 1969, the Law Commission of India highlighted the need to include a provision in the Code that would allow the High Courts and Session Courts to grant anticipatory bail. This provision would serve to protect individuals who are accused or have reason to believe that they may be arrested for a non-bailable offence.
The Law Commission observed that anticipatory bail is necessary because powerful individuals often attempt to falsely implicate their rivals in order to disgrace them or for other reasons, by incarcerating them for a short period of time. Furthermore, it was shown that as political rivalry intensified, the aforementioned tendency exhibited a consistent upward trend. The Law Commission also proposed that it might not be feasible to comprehensively list the circumstances in which anticipatory bail can be granted, as this could be seen as making a premature judgement on the entire case. Therefore, the courts were given complete freedom to make decisions without any restrictions imposed by the statutory provision.
In light of the Law Commission's report and the urgent necessity at hand, the Parliament introduced a provision for anticipatory bail under Section 438 of the Code, titled "Direction for grant of bail to person apprehending arrest."
The jurisprudence on anticipatory bail has evolved in a non-linear manner, through a multitude of rulings rendered by the Supreme Court. The subsequent instances are regarded as significant milestones in the legal realm of anticipatory bail.
The landmark judgement on anticipatory bail was delivered by a five-judge bench of the Supreme Court on April 9, 1980, in the case of Gurbaksh Singh Sibbia v. State of Punjab. This judgement established the current legal position on anticipatory bail and provided some guiding principles on the concept. In its deliberation on personal liberty as a fundamental right under Article 21, the Supreme Court ruled that any provision of law pertaining to an individual's personal liberty cannot be unjustifiably diminished by imposing additional limitations, particularly those that are not explicitly stated in the statute. This due process was influenced by the ruling in the case of Maneka Gandhi v. Union of India, which affirmed the importance of an individual's personal freedom and required all legislation related to personal freedom to be "just, fair, and reasonable."
In addition, the Supreme Court ruled that courts should be cautious about imposing superfluous limitations on the scope of Section 438 of the Code, especially when the legislature has not placed any such limitations. Considering this, the Supreme Court determined that there should be no restriction on the duration of anticipatory bail. The Supreme Court observed that anticipatory bail does not have any statutory time restriction, as imposing one would fundamentally alter its purpose from safeguarding personal liberty to providing conditional freedom. Additionally, the Supreme Court affirmed that courts have the right to set restrictive restrictions as they see appropriate, but they should carefully assess the gravity and type of the charges being brought. In addition, the Supreme Court established certain guiding principles, including the requirement for the applicant to demonstrate a "reason to believe" that they may be arrested for a non-bailable offence. The High Court or Sessions Court must independently assess the situation and determine if there is sufficient justification to grant such relief. It is important to note that the filing of a First Information Report (FIR) is not a necessary requirement for the exercise of power under Section 438. (iv) Anticipatory bail can be granted prior to the arrest of the applicant, even if a FIR has been filed. (v) The provisions of Section 438 cannot be used to seek anticipatory bail after the accused has been arrested. (vi) It is generally not advisable to issue a blanket order of anticipatory bail. (vii) The usual practice should not be to restrict the duration of the bail order.
In the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra, the Supreme Court, consisting of three judges, took a different stance. They argued that anticipatory bail should have a specific time limit because a request for unconditional relief can only be granted once the inquiry is complete. The Supreme Court's reasoning was that when the Court of Session or the High Court grants anticipatory bail, it does so during an incomplete investigation, and consequently lacks information about the evidence against the accused. The Supreme Court emphasised that anticipatory bail orders should have a restricted duration. Typically, after this period or any extension, the court granting anticipatory bail should allow the regular court to handle the case based on the evidence presented during the investigation or when the charge sheet is submitted. The judgement in Salauddin (Supra) may be considered incorrect for two reasons. Firstly, it did not take into account the law established by the Constitution bench in Sibbia (Supra), which suggests that the judgement may be considered as per incuriam. Secondly, the judgement may not have adequately considered the scope of Section 438 of the Code, the level of scrutiny allowed when deciding an application under this section, and the relevant factors to be considered at that stage. It is widely accepted that the factors taken into account by the court when granting anticipatory bail are very similar to those considered when granting normal bail. Consequently, there might not be any justification for a distinction in methodology when deciding on an application for anticipatory bail compared to one for regular bail. In the Salauddin case, the Supreme Court did not take into account the fact that even in an ordinary bail application, the court may not be made aware of the specific evidence against the petitioner.
Although the ratio established in the Salauddin case seems to be initially incorrect, the concepts stated in that case were still applied in several judgements, all of which contradicted the Sibbia case.
Later on, the legislation regarding this matter was adjusted, and the Supreme Court, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, thoroughly examined Section 438 in relation to personal freedom, which was a major aspect of its approach. The Court observed that Section 438 was included to guarantee and safeguard personal freedom. However, the Court noted that the decision in Sibbia (Supra) was not brought to the attention of the bench in Salauddin (Supra), which rendered both decisions and the subsequent decisions that followed its reasoning as per incuriam. Therefore, the Supreme Court ruled that if Section 438 does not specify a time limit, the duration of an order providing anticipatory bail should not be shortened.
In the case of Sushila Aggarwal v. State (NCT of Delhi), a panel of five judges in the Supreme Court overturned previous judgements, including the one in Siddharam Satligapa Mhetre (Supra), and ruled that anticipatory bail should not always have a specific time limit. Instead, it should be granted to the accused without any restrictions on the duration. It was determined that the duration of an anticipatory bail order does not typically end when the accused is summoned to court or when charges are filed. Instead, it can continue until the trial concludes. However, if there are any unique circumstances that require the court to limit the duration of anticipatory bail, it has the authority to do so. The Supreme Court upheld and reiterated the findings and judgement established by the Constitution Bench in the Sibbia case. In addition, the Supreme Court ruled that the request for anticipatory bail must be supported by specific and verifiable facts related to a particular offence, as well as a valid reason for fearing arrest. It was emphasised that courts should take into account the characteristics of the crime, the individual's role, the probability of them interfering with the investigation or tampering with evidence, and the likelihood of them leaving. Based on these factors, courts may impose stringent conditions. In addition, in its conclusion, the Supreme Court established specific guiding principles. It stated that the police or investigating agency have the right to approach the relevant court, which grants anticipatory bail, to request an order under Section 439 (2) to arrest the accused if they violate any of the conditions set forth. Furthermore, they also have the right to investigate the charges against the individual seeking anticipatory bail.
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