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Granting bail is the rule and jail is an exception

Before I get into the meat of the issue, at the very outset let me pay rich tributes to one of the well-acclaimed jurists of recent times Late Shri Justice Vaidyanathapuram Rama Krishna Iyer.

Published: 16th February 2020 05:16 AM  |   Last Updated: 16th February 2020 05:22 AM   |  A+A-

Before I get into the meat of the issue, at the very outset let me pay rich tributes to one of the well-acclaimed jurists of recent times Late Shri Justice Vaidyanathapuram Rama Krishna Iyer.Justice Krishna Iyer has many pioneering verdicts to his name and one of the most relevant among them is the State of Rajasthan Vs Balchand alias Baliay judgment pronounced in 1977. In the foregoing case, the Justice held that: “The basic rule may perhaps be tersely put as bail, not jail”.While pronouncing this landmark verdict, the Justice relied upon many rights guaranteed to the accused by the supreme law of the land, the Constitution of India, and the most prominent among them is the fundamental right to liberty guaranteed under Article 21 of the Constitution.Detention of an individual impinges upon his liberty and therefore courts, while interpreting the provisions of the Criminal Procedure Code (CrPC) pertaining to arrest, ordinarily hold that unless indispensable, detention of an individual must be avoided.

Section 41 of the CrPC categorically lays down grounds in which arrest of an individual can be ensured. CrPC legislation also provided some statutory rights to individuals detained or apprehending detention. The nomenclature given to such a statutory right under CrPC is known as “bail”. Bail in a strict sense is a form a security executed to release an accused from detention. Bails are broadly classified as: regular bail; anticipatory bail; statutory bail; interim bail. In this article, I wish to confine myself to the anticipatory bail. As the name implies, anticipatory bail is ordinarily sought when an individual anticipates arrest. Section 438 of the CrPC deals with anticipatory bail and it reads as follows: (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence,

he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. So, anticipatory bail in simple terms can be referred as a pre-arrest bail. Essentially, the reason for incorporation of such a provision in the CrPc is multi-fold: The liberty of an individual is a fundamental right and therefore sacred and hence should not be allowed to be compromised for frivolous reasons. The fundamental principle of criminal jurisprudence: “Presumption of Innocence”. That is, until proven guilty beyond reasonable doubt every individual is innocent in the eyes of law.

The individual seeking anticipatory bail must pass a test famously known as a triple test for grant of pre-arrest bail. He must prove that he is not a flight risk, i.e, he doesn’t have an intention to flee from the country therefore will be present for investigation as and when the need arises. He will not tamper with evidence; He will not influence witnesses, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. If this triple test is satisfied, ordinarily, courts grant anticipatory bail to the alleged accused. Also, while granting bail courts can impose such reasonable restrictions as they deems fit and in the larger interests of justice. However, the most contentious issue is: Can courts invariably prescribe time limit while granting an anticipatory bail? This question takes us to one of the most significant judgments lately pronounced by the Supreme Court (SC) in relation to the anticipatory bail. In the case of ‘Sushila Aggarwal and others Vs. State (NCT of Delhi) and another,’ the apex court made some critical observations. 

The SC held that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period. However, the apex court further added that based on the facts and circumstances of each case the jurisdictional court can impose fixed tenure of relief or condition relief to an event.The apex court also held that anticipatory bail granted by the jurisdictional court does not ordinarily end when the accused is summoned, or when charges are framed and therefore can continue until the end of trial. The court again specified a rider here: If circumstances warrant, the jurisdictional court can limit the tenure of an anticipatory bail.The court while citing the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab held that the condition precedent of registering an FIR before pleading/seeking for an anticipatory bail does not hold good and therefore plea for pre-arrest bail can be moved even earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

This can unequivocally be stated as one of the key takeaways of the verdict. The court further held that while the plea for anticipatory bail is pending before the court if circumstances so warrant the jurisdictional court can grant a limited interim anticipatory bail.The apex court also held that conditions imposed while granting an anticipatory bail must be assessed on a case-by-case basis, however, such limiting conditions may not be invariably imposed. It further added that the decision of courts granting anticipatory bail must be guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or refuse it.The apex court in equal measure conferred the authority on the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non­ cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

This judgment of the apex court is a path-breaking verdict on many counts. The verdict has references to our freedom-struggle, arbitrary and indefinite detentions during freedom movement and also about the lack of proper safeguards in pre-independent India against illegal detentions. The court has also cited that arbitrary and groundless arrests, even after Independence, continue as a pervasive phenomenon. These vehement remarks from an institution regarded as the custodian of the Constitution of India and the protector of the fundamental rights in India is unambiguously a welcome move and should be cherished by all right-thinking individuals.


The individual seeking anticipatory bail must pass a test famously known as triple test. He must prove that he is not a flight risk, i.e, he doesn’t have an intention to flee from the country. He will not tamper with evidence; He will not influence witnesses

Umesh Chandra PVG 
High Court advocate umeshchandra356@gmail.com


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