Making certain observations as part of a recent judgment, Justice Markandey Katju of the Supreme Court recommended that the state government of Uttar Pradesh restore the provision in the Code of Criminal Procedure (CrPC) relating to the grant of anticipatory bail.[1] 

It has been suggested that Justice Katju’s recommendation was “out of sync” as the deletion of the provision had been effected by an Act of the state legislature and the remarks therefore might be construed as judicial overreach. It has also been pointed out that the Supreme Court had upheld the validity of the Uttar Pradesh law that deleted the provision.[2] 

The criticism is unfounded. The honourable judge was simply endorsing the repeated recommendations of the Allahabad High Court[3] that the government of Uttar Pradesh restore the provision relating to anticipatory bail. Further, the constitution bench that ruled on the validity of the Uttar Pradesh legislation, it is submitted, did not consider the violations of Articles 14[4], 19[5] and 21[6] of the Indian Constitution in the context of the Uttar Pradesh legislation.  

What is anticipatory bail? 

Section 438 of the Code of Criminal Procedure, 1973 enables a person apprehending arrest to approach the courts for a direction of bail that comes into effect upon such arrest. It states: 

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 the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail.[7] 

This provision is commonly referred to as “anticipatory bail”. It can be understood as an order of bail issued prior to the arrest of a person, providing that if such person is subsequently arrested, he may, on furnishing the bail amount, be released.   

The Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab[8] dealt exhaustively with anticipatory bail and laid down certain rules and guidelines. While stating that the courts should be provided with wide discretion in the application of s.438, the Supreme Court listed some factors to be considered by the judges[9]: 

·        Nature and seriousness of offence (proposed charges)

·        The context of the events likely to lead to the making of these charges;

·        The criminal history of the applicant;

·        The reasonable possibility of applicant absconding;

·        The reasonable apprehension of witnesses or evidence being tampered with;

·        Any interests of the public or state that may be affected. 

The court further clarified that anticipatory bail is a pre-arrest mechanism. It is intended to ensure that in case the person in whose favour the bail is made is arrested, he/she would be released. 

Another important aspect of the Section 438 is that it can provide some protection from unjustified arrest by the police and abuse of power by state agencies. 

Background 

In its 41^st report issued in September 1969, the Law Commission considered suggestions for the insertion of a provision relating to anticipatory bail.[10] It observed that such a provision was necessary due to increasing instances in which false cases were registered to ensure that the person targetted spent a few days in detention, with the attendant consequences on his reputation.  

The Law Commission recommended the acceptance of the suggestion, stating that where there were reasonable grounds for holding that the accused would not abscond or otherwise misuse his liberty while on bail, “there seems to be no justification to require him to first submit to custody, remain in prison for some days and then apply for bail.”[11]  

In 1972, the government sought the Law Commission’s views on certain aspects of the Criminal Procedure Code Bill, 1970, which had incorporated the recommendations of the Law Commission’s 41^st report.  

The provision was subsequently inserted in the Code of Criminal Procedure, 1973, as section 438. 

In 1996, commenting on a fresh amendment to s. 438 in the CrPC,[12] the Law Commission in its 154^th report stated that despite the misuse of the provision by “affluent and influential sections”, its occasional misuse could not be a ground for deletion and should therefore be retained, subject however to safeguards laid down in the amendment.[13] 

Renewed consideration of s. 438 

In 2005, based on the recommendations of the Committee on Reforms of the Criminal Justice System, headed by Justice V.S. Malimath[14], the CrPC underwent yet another amendment[15] including one to s. 438. Sub-section 1 was replaced and new sub-sections 1A and 1B were inserted.  

Under the new sub-section 1, any person under the apprehension of being arrested could approach either the Court of Session or the High Court for a direction that in case he is arrested he be released on bail.  

Section 1A provides that seven days’ notice must be given to the public prosecutor and Superintendent of Police with a view to giving them the opportunity of being heard before the final order is granted.  

Finally, Section 1B makes the presence of the applicant mandatory for the hearing. 

The amendment drew protests from lawyers across the country, particularly with respect to the insertion of Section 1B. The opposing lawyers felt the applicant ran the risk of being arrested in case of rejection of the application if he/she was present in court. The applicant would thus be denied the right to move the higher courts for relief or appeal.[16]  

The enforcement of the provision was therefore kept in abeyance, and the Law Commission was asked to give an opinion on it. 

Findings of the Law Commission 

The Law Commission in its report[17] analysed the amended provision and recommended as follows: 

- Retention of the sub-section 1, which lists the factors to be considered by judges. The Commission pointed out that the courts were already following these particulars following the Supreme Court’s listing provided in Jagannath v. State of Maharashtra.[18]  

- Omission of the proviso to sub-section 1 which states that there is no embargo on the power of the police to arrest when cases are pending before the Sessions Court or the High Court.  

- Omission of Section 438 (1B) which makes the presence of the applicant mandatory during the hearing of anticipatory bail if the court considers it necessary.  

Uttar Pradesh – Repeal and responses 

The Uttar Pradesh Legislature repealed Section 438 through an amending act in 1976 during the Emergency.[19] The Law Commission in its 154^th report stated that one of the reasons for the deletion of the provision by Uttar Pradesh was that the High Court had been interfering in the FIR and the arrest procedures of the police[20]. 

The deletion of the provision has strained the capacity and resources of the already overburdened High Courts in Uttar Pradesh. In the case of Smt. Sudama & others vs. State of U.P. & others[21], the Allahabad High Court suggested that if the provision on anticipatory bail were available in the state of Uttar Pradesh, the burden on the High Court and other courts would substantially reduce and would allow judges to deal with more pressing matters.[22] The court also stated that there has been no evidence to suggest that the existence of the anticipatory bail provision in other states has led to its gross misuse. It further stated that reinstating the provision would also be beneficial for the poor, who, in case of abuse by the police, would have to apply to the High Court, which is an expensive and cumbersome process. The court observed that it would be even more useful to the poor if the power to approach a Sessions court were also provided under Section 438.[23] 

In the same judgment the court made an explicit recommendation to the Uttar Pradesh to repeal the Act that scrapped the provision on anticipatory bail. Earlier, in the case of Kailash Chand Garg v. State of U.P.[24] the Allahabad High Court had recommended that the government of Uttar Pradesh issue an ordinance deleting Section 9 of the Act and empower the High Courts as well as Sessions Courts to grant anticipatory bail. 

Response of the Supreme Court 

The validity of Section 9 of the UP Act, which deleted the provision of anticipatory bail in the state of Uttar Pradesh, was challenged in a writ petition before the Supreme Court. The Supreme Court dealt with this writ petition in the case of Kartar Singh v. State of Punjab.[25] The case involved a challenge to the validity of certain sections of the Terrorist and Disruptive Activities Act, 1987 (TADA)[26] on the grounds of violation of fundamental rights. TADA effectively overrode Section 438 and provided no alternative benefit to those charged under the Act.[27] The validity of this section was challenged on the grounds of deprivation of life and personal liberty under Article 21. 

The questions that arose in that case were as follows: 

- Whether the state legislature has legislative competence to delete Section 438 of the Criminal Procedure Code? 

- Whether the UP Act 16 of 1976 is violative of Articles 14, 19 and 21 of the Constitution? 

The response of the Court to the first question was that the state government has the authority to amend any law as it pleases by virtue of Article 254 (2) of the Constitution[28] and pointed out that the Uttar Pradesh Amendment Act had received the assent of the President.  

The merits of the law and the violation of the fundamental rights aspect were considered next. It was held that “[i]n view of the discussion made in relation to Section 20(7) of the TADA Act and of the legislative competence of the State, the contention that it is violative of Articles 14, 19 and 21 of the Constitution has no merit and as such has to be rejected.”[29] The reasons given for the retention of Section 20 (7) were: 

- The provision of anticipatory bail is a relatively new provision and was not provided earlier. Taking that away would not amount to violation of personal liberty, as it has not been provided at all. Thus if it has not been available it would not amount to deprivation. 

- Providing the benefit of anticipatory bail to “terrorists and disruptionists” would defeat the purpose for which the provision on anticipatory bail was recommended by the law commission and then enacted. The Court quoted the High Court of Punjab and Haryana in the Bimal Kaur case[30] and stated that the crime of terrorism cannot be treated in the same way as other crimes. 

TADA was a draconian law, and its use, misuse and human rights implications have been exhaustively documented. The restrictions on grant of anticipatory bail were thus in line with the general nature of that law. However, it follows that the reasoning applicable to TADA would not apply to legislation that does not have the same aims, objects and scope as that of TADA. Clearly, charging somebody under TADA, which was enacted to prevent terrorism, is different from charges under other criminal laws. The rationale behind enactments for a grave crime and terrorist activities would be much different from those for a petty offence. This distinction was not maintained in the judgment and thus did not provide an adequate reason for upholding the repeal of the provision on anticipatory bail. 

Conclusion 

The recommendations of the High Court of Allahabad to the Government of Uttar Pradesh no doubt were intended to highlight the need to examine the merits of the deletion of the provision for anticipatory bail.  

Every person should be entitled to the benefit of presumption of innocence. The ability to request anticipatory bail is a fundamental right of personal liberty envisaged under Article 21 and is paramount in forming the basic structure of the Constitution.[31] Justice Katju’s direction is an explicit indication that Uttar Pradesh must ensure basic safeguards available to all other Indians in the criminal justice system.

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