Time limit on advance bail violates personal liberty
GS Paper II
Topic: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Prelims: Section 438 of CrPC
Mains: Anticipatory bail, Basis of the application of anticipatory bail
What’s the News?
A five-judge Bench of the Supreme Court acknowledged that Section 438 (anticipatory bail) helps prevent influential powers from thwarting their rivals in false cases and is often misused against accused like in dowry, domestic violence cases.
Section 438 of criminal procedure code:
- The spectre of arbitrary and heavy-handed arrests to harass and humiliate citizens, led to the enactment of Section 438.
- It empowers the High court and the Court of Session to grant anticipatory bail i.e., a direction to release a person on bail issued even before the person is arrested.
- It protects people from the ignominy of detention in jail for days on end and disgrace to their reputation.
- Person having reason to believe that may apply to the High Court or Sessions court for it.
Duration of anticipatory bail:
- The life or duration of an anticipatory bail can continue till the end of the trial.
Factors to be taken into consideration:
- Antecedents of the applicant, nature and gravity of accusation, possibility of fleeing from justice, whether accusation is made to humiliate the applicant.
Court’s observation:
- The protection against arrest should be used in favour of the accused. Restricting the protection would prove unfavourable for the accused.
- However, it is open for a court to impose appropriate conditions for grant of anticipatory bail if the specific facts or the features of the offence involved demand it. Courts have to consider
- The nature of the offence,
- The role of the person,
- Likelihood of his influencing the course of investigation or
- Tampering of evidence, including intimidating witnesses and fleeing justice.
But restrictions/conditions can be imposed only on a case-to-case basis.
Basis of the application of anticipatory bail:
- An application for anticipatory bail should be based on concrete facts and not vague or general allegations.
- The court held that a plea for anticipatory bail can be filed even before the registration of FIR.
- Courts need not wait to hear the prosecution’s version before granting anticipatory bail.
Bail system discriminates against the poor:
The bail system causes discrimination against the poor since the poor could not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail.
The poor is deprived of his liberty without trial and conviction and this leads to grave consequences, namely;
- Though presumed innocent he is subjected to the psychological and physical deprivations of free life;
- He loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members ofthe family,
- He is prevented from contributing to the preparation of his defence; and
- The public exchequer has to bear the cost of maintaining him in the jail.
Conclusion:
- The poor accused committing bailable offence should not be denied bail on the basis of indigency.
- The grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought.
- It is open for the police to move court for arrest of the accused if there is any violation of bail conditions.