Solving a Paradox: Grant of Pre-Arrest Bail to an Arrestee

The Supreme Court of India in Tejesh Suman v. State of Rajasthan¹, decided on 11-01-2023, left open the question regarding the maintainability of the anticipatory bail application by an accused who has been arrested for another crime. In the facts and circumstances of the case, which occasioned an answer in the first place, the question was left open as the applicant had been taken into custody and subsequently, had been released on regular bail, which made the present petition infructuous. It is this question of law that is sought to be answered in the present article, which is structured as follows: firstly, the objective behind the introduction of Section 438² of the Code of Criminal Procedure, 1973 is discussed; secondly, the author elaborates upon the features of the provision as discussed in the Constitution Bench judgments on this topic; thirdly, in light of the above discussion, the author critically examines the view taken by the Rajasthan High Court which has held that the application is not maintainable; and lastly, concludes with answering what is the better approach of the two to answer this paradox.

A novel provision

Prior to the new Code of 1973³, there was no specific provision that provided a statutory right to the accused to approach the court for a grant of bail in anticipation of arrest. In the absence of such provision, the High Courts across the country had divergent views regarding whether or not anticipatory bail can be granted by exercising the inherent power.⁴ After independence and the coming into force of the Constitution, a need was felt to replace the old code of 1898⁵ with a new Code which was to be in conformity with the changing times. In an attempt of achieving this objective, the 41st⁶ Law Commission was convened, the Report of which became the precursor of the new Code. Inter alia, the Report suggested the incorporation of a provision relating to anticipatory bail and justified the need for this incorporation in the following words:

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse the liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.⁷

Majority of the suggestions that were given by the Law Commission of India in its 41st Report in Clause 447⁸ of the Draft Bill (of the new Code) came to be incorporated in Section 438 of the new Code of 1973.

A misnomer not providing a blanket protection

The term “anticipatory bail” is not mentioned anywhere in the new Code. Despite being established in general as well as legal parlance, the term is considered a misnomer. This is because the time when the order granting anticipatory bail becomes operative is the time when the arrest is made.⁹ Statutorily, Section 46(1)¹⁰ of the new Code provides the procedure for how an arrest has to be made. It states that the person or police officer who is making the arrest, “shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”. It is this touch or confinement from which conditional immunity is provided by a direction that has been so given under Section 438 of the Code.¹¹

The primary prerequisite to be fulfilled before applying for a direction under Section 438 is that there must be “reason to believe” of an arrest for commission of a non-bailable offence, which must not be vague apprehensions rather they must be found on reasonable grounds. A belief is said to be founded on reasonable grounds only if there is something tangible to go by, something which can be examined by the court, based on which the apprehension of the person to be arrested can be considered genuine.¹² An important consequence of having a “reason to believe” of apprehending arrest before applying for the grant of a direction under Section 438 of the Code is that there can be no order for blanket protection.¹³ In a recent Constitution Bench judgment on the topic of anticipatory bail, the Supreme Court has held that:

52.14. A blanket order under Section 438, directing the police to not arrest the applicant, “wherever arrested and for whatever offence” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future.¹⁴

The two diametrically opposite views

Given that the direction under Section 438(1) becomes operative at the time of arrest, there is no doubt that if the person has been arrested; he cannot apply for such direction if it relates to the same offence. However, there are two contrasting views that have been taken by two different High Courts. On one side, the Rajasthan High Court, relying on the observations of the Supreme Court in Narinderjit Singh Sahni v. Union of India¹⁵, has held that a person who is already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested.¹⁶ On the other side, the Bombay High Court in Alnesh Akil Somji v. State of Maharashtra¹⁷ has, disagreeing with the decision of the Rajasthan High Court¹⁸, held that the application for grant of a direction under Section 438(1) of the Code by an arrestee is maintainable and any other interpretation would be against the purport of the provision.¹⁹ The author respectfully puts forward his difficulty in agreeing with the opinion of the Rajasthan High Court. The basis of this disagreement is explained in the following passages:

Incorrect reliance on the judgment in Narinderjit Singh Sahni

The issue for consideration before the Supreme Court, in this case, was whether the persons who, despite obtaining the order of bail, were prevented from being set at liberty because of a production warrant issued in another case, could challenge this detention through a proceeding under Article 32²⁰ of the Constitution of India on the ground that it violated Article 21²¹ of the Constitution. The Court answered this question in the negative. Relevant for discussion for the present topic is the observation which followed thereafter. The Court observed that:

22… 51. On the score of anticipatory bail, it is trite knowledge that Section 438 CrPC is made applicable only in the event of there being an apprehension of arrest. The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and in the wake of the aforesaid question, relieving the petitioner from unnecessary disgrace and harassment would not arise.²²

The Rajasthan High Court itself recognised that the issue in Narinderjit Singh Sahni case²³ was only somewhat similar but not completely.²⁴ Despite this acceptance, the former has accepted the observations in the latter case. The author opines that the element of confusion was introduced because of the manner in which the Supreme Court deemed the petition to be not sustainable:

52. In that view of the matter and since no infraction can be identified, the petition also cannot be sustained as regards the issue of anticipatory bail under Section 438.

In Narinderjit Singh Sahni case²⁵, the main relief which was sought was in the nature of a writ of mandamus or any other writ in the nature of direction under Section 438 of the Code of Criminal Procedure, 1973. Thus, two questions arose before the Supreme Court:

(I) Whether there was any infraction of any of the fundamental rights?

(II) If the answer to the first question is in the affirmative, can an appropriate writ be issued, which is the nature of a direction under Section 438 of the new Code?

Reading the above-quoted passage, prima facie, it appears that the Supreme Court relied on the fact of the applicants being in jail (and the consequences which, according to the Court, follow from it) as a factor that weighed with it to dismiss the writ petition, along with the non-infraction of the fundamental right. The author respectfully opines that if the Supreme Court formed the view that there was no infraction of a fundamental right, the observations relating to anticipatory bail were not apposite. To augment his argument, the author will rely upon the following passage:

Two questions may arise before a court and the court may determine both although only one of them may be necessary for the decision ultimately. The decision on the question which was necessary for the determination of the case would be the ratio; opinion on the question which was not necessary to decide the case would be an obiter dictum.²⁶

Since only the first question was necessary for the determination of the case, the observations of the Supreme Court relating to anticipatory bail cannot be considered a binding precedent. In this context, in the opinion of the author, the view of Bombay High Court is correct which has observed that:

14. … the said judgment does not hold in very clear terms that a person arrested in one offence cannot seek the relief provided under Section 438 CrPC in another offence merely on the ground that he stands arrested in another distinct offence.²⁷

(Only partly) “Examining the issue from another angle”

After relying upon the observations of the Supreme Court in Narinderjit Singh Sahni case²⁸ along with the objective of grant of pre-arrest bail, the Rajasthan High Court gave a practical example to justify why anticipatory bail cannot be granted. The example has been quoted below:

25. Examining the issue from another angle if such an application is held to be maintainable the result would be that if an accused is arrested say for an offence committed of abduction and another case is registered against him for having committed murder and third case is registered against him for having stolen the car which was used for abduction in a different police station and the said accused is granted anticipatory bail in respect to the offence of stealing of the car or in respect to the offence of having committed murder the police investigating agency concerned where FIRs have been registered would be prevented from conducting individual investigation and making recoveries as anticipatory bail once granted would continue to operate without limitation as laid down by the Supreme Court in Sushila Aggarwal case²⁹.…³⁰

It is difficult to agree with this example, especially because Sushila Aggarwal case³¹ has been cited. The Supreme Court has made it abundantly clear that a blanket order under Section 438, directing the police to not arrest the applicant, “wherever arrested and for whatever offence” should not be issued.³² Additionally, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.³³ As a result, even if the arrestee is granted anticipatory bail for one offence, it is very much possible that he can be arrested for another offence. Also, as per Section 438(2), the Court is armed with an inclusive list of restrictions that can be imposed while the grant of anticipatory bail. This leads to an obvious inference that if the conditions on which the anticipatory bail has been granted are violated, it is very much within the domain of the court to cancel the anticipatory bail. Also, what anticipatory bail protects against is the arrest of the accused and the consequences which follow it. It does not restrain the authorities concerned from carrying out the investigation. And the condition imposed will also assist in non-hampering the investigation.

As far as the fact of anticipatory bail being without any limitation is concerned, this only means that those restrictions which are not mentioned statutorily are not to be read into the provision. For example, despite the clear position of law that as a general practice, the order granting anticipatory bail will not be of a limited duration, some courts took the view that it only operates for a limited duration.³⁴

On the basis of aforementioned discussion, the author disagrees with the judgment of the Rajasthan High Court.³⁵

Anticipating problems

Despite the clear disagreement which the author has expressed in the previous chapter, the elephant still remains in the room: Whether the anticipatory bail application is maintainable or not by an arrestee. The author argues that the same is maintainable, and the basis of his answers has been enumerated below:

A blanket problem

Time and again, it has been reiterated that the court while passing an order of anticipatory bail cannot pass a blanket order covering the individual with a cloak of protection against any and every offence, as such an would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future.³⁶ The author argues that if the individual is prevented from obtaining a blanket protection from arrest into any and every offence, a logical corollary of same ought to be that the State cannot after arresting the accused for one offence use the arrest as a blanket in which the accused can be covered for every other offence.³⁷

Preserving the element of discretion

If the non-maintainability of the application for the grant of anticipatory bail is accepted as the correct position, then the element of discretion which is available with the court will be taken away. Even if there are a multiplicity of first information reports against the arrestee, the courts are very much within their competence to consider those factors. And that competence is made available to them as per the existing statutory framework. Section 438(1), inter alia, provides the nature and gravity of the accusation read with the antecedents of the accused as factors that have to be taken into consideration by the court exercising its discretion to grant anticipatory bail. And as is true for any matter requiring the exercise of discretion, the same ought to be done not capriciously, but rather judiciously and within the well-accepted and well-established parameters.³⁸

The question of disgrace and harassment

Though only an obiter, the Supreme Court in Narinderjit Singh Sahni case³⁹ has made observations, which, respectfully, appear to be bereft of attachment to actualities.⁴⁰ If found unnecessary, the continued arrest is bound to bring avoidable disgrace to the arrestee. But more importantly, the harassment is not bound to subside if someone remains in custody. If anything, the kind and degree of harassment are bound to increase and vary manifold.⁴¹

To fortify his argument, the author will apply the foregoing discussion in this chapter to an example that is inspired by the one given in Rajasthan High Court’s judgment⁴². Also, it is accepted as correct that an anticipatory bail application is not maintainable by an arrestee in a different offence.

The accused will in all probability apply for regular bail in Case 1. Even if he files the application just after arrest, according to a rough timeline,⁴³ his case will be taken up for hearing on 8-3-2023. If the applicant makes a case, he will be directed to be released on bail on that date. However, because he is precluded from maintaining an application for anticipatory bail in Case 2, notwithstanding the facts of either case,⁴⁴ the arrestee who has been arrested in Case 1 will also be arrested de facto for Case 2, even if his arrest de jure takes place for latter only on 15-1-2023. This would mean that the arrest in one case acts as a blanket for another case. The obvious legal recourse would be to apply for regular bail. But even if he applies for regular bail promptly after his arrest in Case 2, the matter will be heard only in mid-March. The author asserts that this period is avoidable.⁴⁵ His assertion is based on the following statement in 41st Law Commission of India’s Report, which, as stated earlier, was the precursor to the new Code in general and Section 438 in particular:

Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse the liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.⁴⁶

On the basis of the above discussion, the author respectfully agrees with the ratio of the judgment of the Bombay High Court⁴⁷ and concludes that the anticipatory bail application for a different offence by a person who is already arrested is maintainable. There is no statutory restriction that is present in Section 438 or and incorporation of such restriction goes against the purpose for which the provision was introduced in the first place.