Right To Get Anticipatory Bail Is Not Any Fundamental Right, Says Punjab & Haryana HC [Read Order]

Justice Rajbir Sehrawat observed that the statutory power of granting pre-arrest bail is so extraordinary that it is not even available in some parts of the country. The Judge said:

No doubt, the accused as a citizen has a fundamental right to life and liberty. However, that right to life and liberty can very well be curtailed in accordance with the procedure established by law. As per the procedure prescribed for Criminal Administration of Justice, the normal procedure for curtailing the life and liberty of the accused, Cr.P.C. prescribes that the Investigating Officer can arrest an accused even without warrant and without assistance/interference of the Court. However, to ensure that a person is not unduly harassed, at least in those cases, where the circumstances are leading, predominately, towards ex facie innocence of the accused, the Courts have been given special and extra-ordinary power under Section 438 Cr.P.C. This statutory power of granting pre-arrest bail is so extraordinary that it is not even available in all parts of the country; and even through-out the country qua some offences under special statutes. Hence, right to get anticipatory bail is not any fundamental right. The provision of Section 438 Cr.P.C. provides only a remedy to an accused and leaves the extent of right to liberty to be decided by the Court.

Taking note of the police file, the court observed that, it contains definite incriminating material which can lead to a positive connection of the petitioner with the contraband allegedly recovered from the co-accused. The bench then dismissed the plea holding that it does not find any ground to grant anticipatory bail.

Last year, the same judge while deciding a bail application in a drug trafficking case, had made an in-depth analysis of constitutionality of the provisions of NDPS Act, which puts conditions on grant of bail. The Judge had opined that the same is discriminatory, irrational and defy human logic.

Regarding the judge's observation that there is no provision for anticipatory bail available in some parts of the country, it may be noted that Section 438 Criminal Procedure Code which provides for anticipatory bail had been omitted by Uttar Pradesh government during the Emergency and was only re-inserted recently.

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