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“𝑺𝒖𝒑𝒓𝒆𝒎𝒆 𝑪𝒐𝒖𝒓𝒕 𝒉𝒂𝒔 𝒕𝒖𝒓𝒏𝒆𝒅 𝒊𝒏𝒕𝒐 𝒂 𝒄𝒐𝒖𝒓𝒕 𝒇𝒐𝒓 𝒂𝒏𝒕𝒊𝒄𝒊𝒑𝒂𝒕𝒐𝒓𝒚 𝒃𝒂𝒊𝒍 𝒉𝒆𝒂𝒓𝒊𝒏𝒈𝒔”

 一 𝐂𝐉𝐈 𝐍𝐕 𝐑𝐚𝐦𝐚𝐧𝐚

The Chief Justice of India, NV Ramana, on expressed his anguish over the high number of anticipatory arrest bail petitions filed before the Supreme Court. A bench headed by the Chief Justice was hearing the plea of Gotya Sawant, who was among the accused in an attempt to murder case along with Nitesh Rane.  

Case Context in brief 一 

Rane was charged on December 18, 2020, with being the prime conspirator in the attempted murder of a Shiv Sena member in Maharashtra's Kankavli area. His anticipatory bail was denied by the Sindhudurg Sessions Court. Following that, the High Court heard the case and documented the petitioner's remarks, which stated that the FIR against him would be filed even though he made a joke about Shiv Sena leader and State Tourism Minister Aditya Thackeray. The FIR's sole purpose is to counteract the petitioner from running in the Sindhudurg Co-operative Bank elections, which are slated for December 30th, 2021.

On January 17, the High Court dismissed his petition, ruling that the state government will not take any punitive action against Rane until January 27, 2022. The petitioner, who was dissatisfied with the order, went to the Supreme Court of India.

Evaluating the device and importance of Anticipatory Bail provisions 一

The descriptor Anticipatory Bail Application is not defined in the Criminal Procedure Code, 1973 (Cr.P.C), but it first appeared in the 41st Law Commission Report, 1969 (the report), in which the regulators felt the need to include a statutory requirement for safeguarding an accused or any person who is trying to apprehend or believes he/she may be arrested for any non-bailable offence. Keeping in mind the aforementioned findings and the pressing necessity of the times, Lawmakers introduced a clause for Pre-Arrest bail u/s 438 with the heading "Direction for grant of bail to person apprehending arrest" while introducing the 1973 Act. 

Since it affects an individual's freedom and liberty, this is a critical component of our whole criminal justice process; our constitution sets individual freedom on a very moral pedestal. The Supreme Court has often stressed the significance of observing due approach when it comes to arrests. The law concerning bails and anticipatory bail has always been about juggling; on the one hand, there is the preponderance of evidence, the right to liberty, and so on; on the other hand, there is public interest, and it is up to the courts to connect the two. As a result, the factual structure of each case is critical for the granting of bail or an anticipatory bail application.

Judicial Standpoint of – The Weaving Route of Anticipatory Bail Law

The legislation on anticipatory bail has evolved in a quasi fashion, according to a slew of Supreme Court decisions. The following instances are regarded as watershed moments in the jurisprudence of anticipatory bail. 

• Sushila Agarwal v. Delhi State 

While awarding Anticipatory Bail, no time restriction might be set.

While delivering the momentous judgement, the Hon'ble Court was glad to pose two questions:

1. Should a person's protection under Section 438 of the Cr.P.C. be restricted to a set term in order for the person to submit to the court of appeals and seek normal bail?

2. Whether the moment and place at which the accused is summoned to court should be the end of the anticipatory bail term.

The Supreme Court's Constitutional Bench was pleased to respond to the very first argument by declaring that the court issuing the Anticipatory Bail cannot impose a time restriction. "The protection conferred to a person under Section 438 Cr.PC should not usually be restricted to a certain duration; it should insure in favour of the accused without even any constraint on time," the five-judge panel unanimously said. 

The Hon'ble court stated in regarding the second query that "An anticipatory bail order's life or length does not generally terminate whenever the accused is called by the court or when charges are filed, but might last until the conclusion of the trial. Again, if there were any other extraordinary or unusual circumstances that require the court to restrict the duration of anticipatory bail, the court has the authority to do so."

The Supreme Court was circumspect in its response to the second question, providing the court discretionary authority to shorten the duration of the Anticipatory Bail in the event of unique or unusual situations.

• Badresh Bipinbhai Sheth v. State of Gujarat

Anticipatory bail may be denied, resulting in a breach of an individual's basic rights under Article 21 of the Indian Constitution.

In this case the Hon'ble Supreme Court was delighted to rule that "Section 438 of the Code establishes anticipatory bail, which is based on Article 21 of the Constitution, which deals with personal liberty. As a result, in view of Article 21 of the Constitution, a broad reading of Section 438 of the Code is required. According to the Code, anticipatory bail is a pre-arrest judicial process that instructs the individual in whose favour it is made to be freed on bond if he is later arrested on the charge for which the directive was issued."

While noticing the foregoing, the apex court praises the two clauses and links them collectively. The court was delighted to see that Section 438 and Article 21 go synonymously, and that the legislature has protected the citizen's constitutional (fundamental) right to Anticipatory Bail by establishing the law. 

• Arnesh Kumar v. State of Bihar 

In the case of offences punished by a maximum of years' imprisonment, compliance with Section 41(A) Cr.P.C is required.

The Supreme Court considered it important to point out that if an accused is arrested for an offence punishable by up to seven years, an obligatory notice u/s 41A should be served to him.

• Vinay Potdar v. State of Maharashtra 

Rights of First Informant to intervene in Anticipatory Bail Application

The Hon'ble High Court of Bombay declared that if the victim of the crime arrived in court seeking approval to be addressed, he or she should be allowed the chance to be addressed. 

Editorialisation 

The extent and reach of the provision on anticipatory bail have been repeatedly clarified by the courts. Since Section 438 was included in the Code as an alternative to wrongful arrests and detentions, it would be in the interest of the public for Section 438 to be construed properly under Article 21 to eliminate arbitrary and excessive restrictions on personal liberty. The obvious ratio of Sibbia case and Sushila Aggarwal case appears to be consistent with Section 438 of the Code's objective. Freedom and liberty, which is at the core of the law and important to the idea of anticipatory bail, was evaluated and given proper weight by the Landmark Judgement in Sushila Aggarwal case. "To deprive a man of his inherent liberty and to deny him the common comforts of life is worse than famine of the body; it is starvation of the soul, the resident in the body," Mahatma Gandhi quotes.

WEBLIOGRAPHY 

1.  Sushila Aggarwal v. State (NCT of Delhi) 2018 SCC Online SC 531

2.  Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 

3.  Arnesh Kumar v. State of Bihar (2014) 8 SC C 273

4.  Vinay Potdar v. State of Maharashtra 2009 ALL M.R. (Cri.) page 687

5.  Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565

6.  Sushila Aggarwal v. State (NCT of Delhi) 2018 SCC Online SC 531