Recommendations Of The Law Commission Of India On Anticipatory Bail: A Lawyer’s Lament

The Law Commission of India has recently submitted its 268^th report to the Government suggesting amendments to the provisions relating to bail in the Code of Criminal Procedure, 1973. The exercise, however, appears to be cosmetic and what was initially intended to be an attempt at a holistic legal engineering of the bail law has become only a piece meal and adhoc legal engineering.

Inspired and influenced by the Bail Acts of UK, New Zealand, Australia and others countries the Government of India had decided to explore the possibility and to examine the desirability of having a separate and independent Bail Act that would ensure uniformity and predictability in matters relating to grant of bail in India. Unfortunately, however, for reasons best known to the authorities the said exercise was abandoned and instead a truncated attempt was made to bring about minor changes into the provisions for grant of bail.

Chapter VI of the present Report of the Commission deals with anticipatory bail. Certain recommendations of the Law Commission in this Chapter are not only disturbing but are also not legally apposite. For example in para 6.5 of Chapter VI of the Report it is mentioned as follows “It must be borne in mind that s. 438 of the Cr.PC does not form a part of Article 21 of the Constitution of India and it provides discretionary power to the High Courts and the Court of Sessions, in appropriate cases” This recommendation is not in consonance with the ratio of the judgment of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others (2011) 1 SCC 694 wherein at para 99 the Court has been pleased to hold as follows “The restriction on the provisions of anticipatory bail under Section 438 Cr P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi case; in which the Court observed that “ in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.”

Interestingly, in para 6.1 i.e. the first paragraph of the Report on anticipatory bail there is a reference to the aforesaid case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others. However the aforesaid findings and observation appearing in the said case has been overlooked.

A further disturbing feature of the recommendation on anticipatory bail is contained in paras 6.9 and 6.10 which reads as follows;

“6.9 While on the question of considering the duration of anticipatory bail, the law on this point remains highly divergent and ambiguous. It is pertinent to note that the Parliament has not prescribed any duration for an anticipatory bail. It is vague, as it does not mention whether the order should be limited in time or if it is transient in nature until regular bail is obtained. With regards to the determination of the operational period of the anticipatory bail, some courts follow the Gurbaksh Singh Sibbia stance where it was held that the court may limit the operation of the order if there are cogent reasons, keeping it operational for a short period after filing of FIR (First Information Report). In such an eventuality the applicant must move the court under s. 437 of Cr. P.C within a reasonable time after filing of FIR. However, the court has stated that there cannot be an absolute rule to limit the operation of the order and make it time bound.”

“6.10 After the precedent in Gurbaksh Singh Sibbia and prior to 1996, there was no practice of limiting the duration of anticipatory bail (with an exception of the Gujarat High Court). However, this was changed by the Supreme Court judgment in Salauddin Abdulsamad Shaikh v. State of Maharashtra.165 Before Salauddin, the Gujarat High Court in the case of Somabhai Chaturbhai Patel v. State held that since anticipatory bail cannot be permitted to interrupt a comprehensive investigation, relief under s. 438 of Cr. P.C would exhaust itself or will remain operative only till the expiry of a brief period of time from the date of arrest and the person accused of an offence will have to obtain a regular bail in its usual course. The Gujarat High Court held that the order may also provide that it would become inoperative even if no arrest is made within 90 days of the order. However, it can be deduced that the Supreme Court has indeed consistently held that anticipatory bail should be for a limited period and it should come to an end on the expiry of the duration or extended duration fixed by the court granting anticipatory bail. It is for the regular court to deal with the matter after appreciating the evidence filed before the court, once the investigation has made substantial progress or the charge-sheet has been submitted.”        

With utmost respect to the Law Commission the aforesaid findings and conclusions are not legally correct. In the case of Shri Gurbaksh Singh Sibbia and others vs. State of Punjab (1980) 2 SCC 565 a Constitution Bench of the Supreme Court has categorically held that “An over-generous infusion of constraints and conditions which are not to be found in section 438 can make its provisions constitutionally vulnerable since the right to a persons freedom cannot be made to depend on compliance with unreasonable restrictions.”  As to the issue that the grant of anticipatory bail should be for a limited duration the Constitution Bench in para 42 of the aforesaid judgment has categorically answered the questions in the negative by holding as follows;

“Should the operation of an order passed under section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.”

What the Law Commission seems to have overlooked is the all important fact that in the case of Shri Gurbaksh Singh Sibbia and others vs. State of Punjab the Court was dealing with a situation where a formal FIR had not been registered and therefore, in such a peculiar situation the Supreme Court had made those observations of seeking bail by moving the Court after registration of formal FIR. The constitution bench judgment however is clear, categorical and unequivocal in holding that the grant of anticipatory bail should not be limited in its operation to a period of time.

The aforesaid position of law has also been reiterated in the subsequent judgment of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others (2011) 1 SCC 694 wherein the argument that grant of anticipatory bail should be limited in point of time has been expressly rejected and it has been categorically held in paras 100, 101, 102 and103 as follows:

“100. Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation.”

“101. The court does not use the expression `anticipatory bail' but it provides for issuance of direction for the release on bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin's case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial court would release the accused only after he has surrendered.”

“102. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.”

“103. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial court and only thereafter his bail application can be considered and the life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (Sallauddin’s case) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this court in Sibbia's case.”

To settle the controversy at rest the Supreme Court in the aforesaid judgment is at pains to mention in paras 138, 139 and 140 as follows:

“138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only  the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

139. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.

140. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia's case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under section 438 Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.”

Regrettably, while the 41^st and 48^th Report of the Law Commission which extensively dealt with the provisions of Section 438 Cr. P.C. concerning grant of anticipatory bail did not consider it appropriate to suggest any amendment to the Cr. P.C. for providing any time limit while granting anticipatory bail and left it to the wisdom of the Courts to do so if felt necessary in the facts of any case the present Law Commission by way of a strained and convoluted process of legal reasoning and by a misreading of the Constitution Bench judgment in Gurbaksh Singh Sibbia’s case and by completely overlooking the judgment of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others and by relying upon judgments which have been declared as per incuriam has made its recommendations which are legally vulnerable.