Restrictive Interpretation To Section 438 Of The Code Of Criminal Procedure

The Criminal law Amendment Bill, 2018^[4] introduced the sub-clause 4 in section 438 of CrPc, which deals with the only restriction on the maintainability of Anticipatory bail application:

"(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."^[5] Further, except clause 4 the legislature does not impose any other restriction on the maintainability of application u/s 438 CrPc.

Authority of the court to decide upon the issue of maintainability

Now the issue arises that whether the court has the authority to impose any restrictions on the maintainability of application u/s 438 on a condition that can neither be interpreted from the bare provisions nor it satisfies the intention of the parliament which includes protection of the liberty of the individual and according primacy to the basic tenet of Criminal Jurisprudence i.e., everyone is innocent until proven guilty, of course, the answer cannot be in affirmative.

From the pronouncements in the case of Shri Gurbaksh Singh Sibbia and others Versus State of Punjab ^[6]and Sushila A Aggarwal and others Versus State (NCT of Delhi) and Another^[7] it is evident that there is no bar in any statute that prohibits court of law from entertaining application u/s 438 CrPc when such person is already in judicial or police custody in relation to any other offence. The Court has the jurisdiction to apply its discretion over the merits of the case while considering the application u/s 438 CrPc but any action of the court in imposing any further restriction on the maintainability of application u/s 438 would be outside its purview and jurisdiction.

Flaws in the reasoning of the court

A substantial flaw in the reasoning of the court is the absence of an alternative remedy for the defendant. We have to see that if the arrest of a person in a different case acts as a bar to the anticipatory bail application, on the rationale that someone already arrested cannot presume arrest then what are the left alternative remedies available to the said person in custody in respect to the other cases which puts the liberty of that person at stake. In this respect, it would appear that the person shall be left with no remedy as the prerequisite for application u/s 437 CrPc (When bail may be taken in case of non-bailable offence) is that the person should have been arrested in the matter under which the application has been filed and due to the arrest in a different case fulfillment of the said condition becomes impossible, further until the remedy u/s 437 CrPc is not exhausted the defendant cannot appeal u/s 439 CrPc (Special powers of High Court or Court of Session regarding bail), therefore the defendant is left with no remedy.

Another flawed rationale applied by the court is that if a person's liberty has already been restrained then the issue of protection of liberty does not arise. To identify the flaw in this reasoning we have to analyze a situation wherein the defendant gets bailed out in a particular case under which the defendant was under arrest, afterward the defendant gets arrested with immediate effect in the another case, in this particular situation if the Court would had granted anticipatory bail to the defendant while the defendant was in the custody in a different case the order of the bail shall have become effective at the time of arrest. The Apex Court held in the matter of Gurbaksh Singh Sibbia and others (supra) that “Any order of bail can, of course, be effective only from the time of arrest because to grant bail, as stated in Wharton’s Law Lexicon is to set at liberty a person arrested or imprisoned.” In Sushila A Aggarwal and others (supra) Apex court while deciding whether the protection granted u/s 438 CrPc has any time limit the court held that “A bare reading of Section 438 CrPc shows that there is nothing in the language of the section which goes to show that the pre-arrest bail granted under section 438 has to be time-bound.” Further in the matter of Savitri Agarwal vs state of Maharashtra^[8] it was held that “The order of anticipatory bail does not operate in praesenti. The order becomes operative only when person in question is arrested.” Therefore, when the court decides the application of anticipatory bail the court does not intend to protect the liberty of the defendant just for a fixed time period or for a particular event however the court protects the liberty of the individual and in respect to which the order of the court by default gets effective whenever the liberty is at stake, therefore, the reasoning applied by the court in relation to the protection of liberty shall be flawed.

The High Court of Allahabad and the High Court of Rajasthan both relied on the judgment of the Apex Court in Narinderjit Singh Sahni & Another (supra). The following judgment of the Apex Court can’t be treated as a precedent Firstly, the matter of facts are completely different in nature in both cases as in the matter before the apex court the writ petition was filed under article 32 for infraction of fundamental right under article 21 hence the question of maintainability of the writ petition was under consideration, for the consideration of the same the Apex Court has to identify that whether there has been an infraction of Article 21 and that too without a procedure established by law which in no way can be compared to the maintainability of section 438 CrPc wherein the only restriction over the maintainability is mentioned under sec 438 (4) of CrPc. Secondly, The Hon’ble Apex Court did not held the application presented before it to be not maintainable however, the court went into the merits of the case and held that the merits of the case do not warrant an infraction of Liberty under Article 21 and hence the application was outrightly rejected on its merit, which is totally different to the issue beforehand as there is no issue in regards to the discretion applied by the court over the facts of the case for granting of anticipatory bail the issue only revolves around the bar on the maintainability of the application for anticipatory bail.

There has been a recent trend of cases wherein people, especially public/political figures, are charged with several cases at the same time in different places with the malicious motive to prolong their judicial custody and simultaneously to cause them unnecessary hardship in obtaining justice, thereby proving to be a significant cause of concern for the execution of criminal justice system in India. In conclusion, while restricting the scope of maintainability of the application for anticipatory bail (sec 438 CrPc) the Court erred at three points. Firstly, it acted beyond its jurisdiction and went into the feet of the legislature while imposing further restrictions on the maintainability of application u/s 438 CrPc. Secondly, The court did not take into consideration that following the judgment, the defendant shall be left without any alternative remedy, and the possibility of infraction of liberty of the defendant remains. Thirdly, The rationale behind the judgment of the court being flawed violates the basic principle of criminal jurisprudence i.e. innocent until proven guilty, Further, the precedent followed by the court cannot be relied upon.

Views are personal.