Surrender to Safeguard Study of Judicial Discretion of Pre-Arrest Bail to a Proclaimed Offender

An anticipatory bail in the event of proceedings under Sections 82/83, Criminal Procedure Code (CrPC) [Ss. 84/85, BNSS] has been a source of judicial divergence and professional predicament. While pre-arrest bail by itself being no blanket privilege, the Courts often, and rightly so, lean to protect liberty not elevating the procedure above liberty of an accused under this provision incorporated in the Criminal Procedure Code, 1973.

Significantly, the Supreme Court in Arnesh Kumar v. State of Bihar¹ underscored the need to protect the individual liberty providing for notice under Section 41-A CrPC [S. 35 BNSS) proceeding to arrest. It is delicately nuanced and balanced to protect liberty on without curtailing the legitimate power of police.

Liberty under Article 21 involves more than a physical freedom. It includes dignity and reputation also. Liberty had been the concern even in the judgments pre-dating Arnesh Kumar. Various instances of judicial intervention in the cases of arrest do reflect that the police are not allowed to arrest without any grounds of arrest and without following the procedure established under law.

The article seeks to decode the contemporary judicial approach as fully aligned to accord conduct of the accused primacy over the status of the proclaimed offender. In all judicial expositions, the denial of pre-arrest bail to a proclaimed offender is based upon discreet reasoning and on the established grounds for grant of pre-arrest bail under Section 438(1) [S. 482(1) BNSS] coupled with assessment of conduct of the accused, gravity of offence and societal interest. There is no takeaway from the verdicts that once an accused is declared a proclaimed offender, this status disqualifies him from those privilege of pre-arrest bail. The Supreme Court, on the contrary, commends such jurisdiction of Constitutional Court to grant anticipatory bail to a proclaimed offender after factoring other concerns.

Object of anticipatory bail

Anticipatory bail owed its origin to the 41st Law Commission Report, 1969 (para 39.9vol. II) wherein the provision was recommended to protect the innocent from influential people implicating them in false cases. It is thus, a statutory right and not part of fundamental right under Article 21 of the Constitution of India.

Notwithstanding the forgoing, the right to apply for anticipatory bail as a judicial recourse has its own peculiar value considering implication in a criminal case and a custody both carrying social stigma and no compensation for custody period, even in cases ending in acquittal.

Our Courts underscored needs of pre-arrest in Indian social milieu as back as in 1980 in Gurbaksh Singh Sibbia v. State of Punjab². Such power was, however, to be coupled with duty to examine conduct of an accused for such privilege. The right under Section 438(1) [S. 482(1) BNSS] is neither a blanket right for the accused to seek and apply for anticipatory bail nor do our Courts summarily reject such prayer solely due to the status of an accused as proclaimed offender.

It is an extraordinary power of the Court to entertain an application under Section 438 CrPC [S. 482 BNSS] along with the case and conduct suited condition which may be imposed while allowing the same. Such an order protecting liberty of an accused is also subject to restrain and eventual cancellation, if conditions are breached.

Protection of liberty being the center theme

The Supreme Court has laid down guidelines of granting anticipatory bail in its Constitutional Bench verdict in Gurbaksh Singh Sibbia³. The judgment discusses that the Law Commission Report in principle had been accepted by the Central Government introducing clause 447 in the Draft Bill of the Criminal Procedure Code, 1970 allowing express power upon the High Court and Session Courts to release an accused on bail in the event of arrest. The judgment mentions para 31 of the 48th Report of Law Commission (1972) also, which endorses the clause 447 of the Draft Bill of 1970 recommendation of the previous Commission, observing it to be a “useful addition”.

The Constitution Bench sounded situations like hand cuffing or parading the accused on way to court of justice as also the possibility of “foul deed” of an adversary in setting the law in motion and exposure to “social ridicule and obloquy” upon arrest.

Guiding mantra

Be that as it may, the guiding mantra continues to be the conduct of an accused rather than status of a proclaimed offender which lies in the center. It is evident when seen through the prism of judgment of the Supreme Court that the pre-arrest bail is denied only in the cases of grave offence and upon considering the materials on record and to prevent the accused from committing future offence. It is always held to be a qualified statutory right where even as a proclaimed offender, the bona fide of the accused will, for sure, weigh before the Court. The conduct of deliberate evasion/defiance or a conduct clearly in conflict with law shall surely debar the accused. Thus, the bona fides and overall balance between liberty and fair investigation appear to be the guiding principle.

Statutory guardrails against misuse of privilege

Even otherwise, the Courts or society hardly need to apprehend in allowing pre-arrest bail. As it is, the parliamentary amendments in CrPC had already created rigors by introducing amendment in Section 438. The courts are to be vigilant while granting any relief under Section 438. Sub-section (1-A) had been inserted to make it mandatory to hear the public prosecutor and preceded by a notice to the prosecution. Sub-section (1-B) gives right to the public prosecutor to request the Court for presence of the applicant, if need be.

To further add to the premise discarding the belief that an anticipatory bail is a blanket relief, it deserves reiteration that Section 438 (2) provides substantial power to the court to impose series of conditions upon the accused.

The privilege of anticipatory bail is denied for the offence under Sections 376(3), 376-AB and 376-DB of the Penal Code, 1860 [Ss. 65, 64(2) and 70 BNS, respectively] relating to rape and gang rape of the minor. This is in addition to non-maintainability of anticipatory bail in the cases of offence involving punishment of death/life imprisonment or economic offences of cheating unless charge appears to be false and baseless.

Subject to the above restriction, our courts have reflected sensitivity on the liberty of the accused under Section 438 CrPC as evident in another landmark judgment of the Supreme Court (Constitution Bench) in Sushila Aggarwal v. State (NCT of Delhi)⁴ (para 92) holding that pre-arrest bail is normally till trial subject to discretion to limit its periodicity.

Contemporary judicial approach

In the chain of cases dealing with the issue comes prominently the case of Lavesh v. State (NCT of Delhi)⁵. It may be an overstatement to draw of ratio of absolute bar on anticipatory bail for a proclaimed offender from the verdicts. The learned Additional Solicitor General (ASG) in the said case perhaps opposed bail to the proclaimed offender under the totality of circumstances and material, namely, unnatural death, summons of the investigating officer (IO) avoided by the accused and even during interim protection of the High Court, the accused evaded the IO/Station House Officer as recorded in the affidavit of the police before the Supreme Court. The judgment does not appear to hand down any ratio of barring anticipatory bail to a proclaimed offender in absolute sense.

The Lavesh verdict⁶ was relied by the Supreme Court in State of M.P. v. Pradeep Sharma⁷ again declining pre-arrest bail to a proclaimed offender. A close reading of facts therein will show complicity of the accused in the homicide, the statements of witnesses, the report of forensic department and confirmation of poisoning as cause of death were discussed by the Court. It noted that proclamation was issued only when accused were not available/traceable. So, Pradeep Sharma⁸ is also not a law on bar on maintainability of pre-arrest just for the proclamation already made. Accused even otherwise did not deserve per-arrest bail.

A reference of Prem Shankar Prasad v. State of Bihar⁹ is also relevant on denial of anticipatory bail to an accused faced with Sections 82/83 CrPC proceeding issued long back. The charge sheet was submitted and the High Court did not even notice the factum of process under Sections 82/83 issued while allowing the pre-arrest bail without even discussing the material. It seems the vital considerations had been overlooked which was the ground setting aside the order of High Court.

But in another case Abhishek v. State of Maharashtra¹⁰, the Supreme Court held an absconder who had remained out of reach of the investigating agency is in conflict with law.

In yet another case of State of Haryana v. Dharamraj¹¹, the Supreme Court candidly recorded that the Constitutional Courts can consider grant of anticipatory bail to a proclaimed offender under exceptional situations.

Even later in the case of Asha Dubey v. State of M.P.¹², the Supreme Court held that against any embargo and underscored the liberty as of prime importance, but with a rider to examine the circumstances of the case, nature of the offence and the background in which the proclamation was issued.

Even in the recent judgment in Serious Fraud Investigation Office v. Aditya Sarda¹³, the Supreme Court had only sounded note of caution for the Courts to be careful in cases of accused seeking anticipatory bail is declared as proclaimed offender.

The up short of the above discussion is that anticipatory bail, despite any proceeding under Sections 82/83 CrPC, is maintainable. It also reflects upon the duty of the Court to look for the circumstances and consider the plea of anticipatory bail on exceptional and extraordinary situations.

No doubt a proclamation does create a strong prosecution, rebuttable though, against grant of anticipatory bail but the verdicts deal with the factual part of the allegations and the conduct of accused in place of over emphasis on the presumption.

The judicial verdicts are thus in line with judgment in the case of Sushila Aggarwal v. State (NCT of Delhi)¹⁴ by the Constitution Bench. The Supreme Court pinned the need to balance the liberty and interest of the society hence upholding and reiterating the theme and thrust of Gurubaksha Singh Sibbia¹⁵, it held life of anticipatory bail till trial, but acknowledging right to limit the anticipatory bail till a stage and right to impose restrictive condition — all for the protection of trial and the ends of justice. One more aspect needed to be highlighted that it is always preferable to allow anticipatory bail despite Section 82/83 proceeding in the interest of justice.

Conclusion

It is thus clear as daylight that the Constitutional Courts may not reject the pre-arrest bail application merely on account of declaration of absconder by the Court. Such an approach would not only justify thrust on liberty against possible false cases or procedural aberration by the Court below, it shall also sub serve the cause of justice. The trial may remain on hold awaiting a feeble prospect of arrest/surrender of the accused.