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| Sunday, 15 August 2004 |
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Anticipatory bail not a right
Bail is a vital elemental link in the criminal procedure. Any abuse or misuse of it can firmly lead not only to a breakdown of justice but also to crowded prisons and frustration of liberty and freedom. From apprehension of arrest up to the appeal and revision from acquittal and conviction bail plays an inexorable part towards justice and fairplay. It is not divorceable from procedure and will and has to remain integrally a part of criminal procedure and administration of justice. Indiscriminate grant or callous refusal of bail is going to harm and corrosively erode justice, which is close to the heart of every citizen in the firmament. The law of bails is not static. It is all the time growing gearing to the exigencies of time. In time of crisis and war bail frowns at the individual and embraces society and government but in peace and tranquillity, it acts favourably to the individual and society. The current Code of Criminal Procedure Act No. 15 of 1979 (Cr. P.C.) contains the law relating to bail. There are other statutes too with provisions for bail, eg. Prevention of Terrorism Act, Offensive Weapons Act etc. Bail Act No. 3 of 1997 was passed superseding the law of bails in the Cr. P.C. The preamble to the Act provides for release on bail of persons suspected or accused of being concerned in committing or of having committed an offence; to provide for the granting of anticipatory bail and for matters connected therewith or incidental thereto. This Act, while not distinguishing between bailable and non-bailable offences has offered a salutary provision of granting bail as a rule and refusing it as an exception. This is received as a solace by both the suspects and accused alike. The only bar to the common categorisation of bail is section 13, which deals with offences punishable with death or life imprisonment; yet bailable with the consent of a High Court Judge. Basically there are no offences in the Sri Lankan penal laws that is not bailable, other than the offences prescribed in statutes with special provisions for bail. The concept of anticipatory bail (A.B.) was introduced to Sri Lanka by Section 21 of the Bail Act of 1997. It is a new phenomenon copied from India and is fairly rich in case law on the subject. For better perception, the section has to be analysed in detail lest there can be miscarriage of justice in its implementation. Section 21 states thus: 'When any person has reason to believe that he may be arrested on account of his being suspected of having committed or been concerned in committing a non-bailable offence, he may with notice to the officer in charge of the police station of the area in which the offence is alleged to have been committed, apply to the Magistrate having jurisdiction over the area in which such offence is alleged to have been committed, for a direction that in the event of his arrest on the allegation that he is suspected of having committed or been concerned in the commission of such offence, he shall be released on bail. The application form A.B. has to be by petition supported by affidavit on the applicant - Section 21 (2). The duty cast on the Magistrate under Section 21 (3) is to fix it for inquiry within seven days of the receipt of the application with notice to the applicant and officer in charge of the police station of the area where the offence is alleged to have been committed. Section 21 (4) binds the Magistrate to make an order either allowing the application for A.B. or refusing the same with reasons given. He shall attach conditions if A.B. is granted. The Magistrate has to take special care to mention in the order for A.B. the offence or offences in respect of which the order is made and the manner in which the bail shall be furnished by the applicant at the time of arrest. If the Magistrate considers that he should prohibit the applicant from leaving Sri Lanka, he has to impound his passport and then notify the Controller of Immigration and Emigration of such facts. Section 23 gives the power apparently to the OIC of the Police Station concerned to execute the order of A.B. in the manner provided in the order of the Magistrate if the applicant is arrested for the offence mentioned in the order or any other offence constituted by the acts constituting the offence specified in the order. There is a duty cast on the applicant after being released on A.B. to observe the following conditions. (a) to make himself available to the police for interrogation at any time on any day between 6 a.m. and 6 p.m. (b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or police. (c) not to tamper with any evidence in the case. Section 25 empowers any police officer to carry out his police duties such as interrogation, applying for warrant of arrest in respect of the offence mentioned in the application for A.B. during the pendency of the application. Section 26 also states that the Magistrate on the application of the OIC of the police station investigating the offence may issue a warrant on the applicant to appear in court with reasons given. Section 26 (2) empowers the Magistrate to make a detention order on the applicant when he responds to Section 26 (1) with reasons given. He can either revoke or vary the order subject to reasons. Section 27 states that the Act is to prevail over any contrary provisions in any other written law other than the Release of Remand Persons Act No. 8 of 1991. It is now evident that the whole concept of A.B. is embodied within Sections 21 to 29 of the Bail Act with far reaching assignable interpretations surrounding this embryonic concept of A.B. pushing, Magistrates into difficult embarrassing and discomforting situations of decision-making especially because of the type of applicants who seek A.B. for whose benefit the concept is mainly conceived. Pioneers India being rich in case law on A.B. and also the pioneers, it could not have been unwise to reach Indian Courts for some kind of judicial help in bringing the A.B. to the statute book. As far as I know, there was no conflicting judicial opinion unlike in India towards A.B. in Sri Lanka other than a few parliamentary outbursts among some of the members. Amidst the conflict, A.B. became law in Act No. 30 of 1997. (Bail Act) The corresponding section to Section 21 of the Bail Act is Section 438 of Indian Cri. Pro. Code. There are differences in the wording of the two sections but they don't disturb the source of the section nor the likely outcome. Both aim at the same target. The Law Commission of India in its 41st report observed 'The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, the tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail'. There is no reason to disagree with the intention embedded in the Commission Report. The salutary provisions of Section 438 of Cri. Pro. C. is to see 'that the judicial liberty of the subject is not put in jeopardy on frivolous charges at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution' - Balchand v. State of M.P. 1977. The view generally held is that regular bail is after arrest (post arrest) and A.B. is before arrest (pre arrest). In A.B., the bail is tailored to suit the case of the applicant by the Magistrate, to be used on arrest and not before arrest. In other words arrest has to take place for the A.B. already tailored to operate. For regular bail cases are taken up case by case and considered on its own merits. In A.B. the ready made package of bail is ready for the applicant. The applicant will not have to undergo the rigours of jail even for a few hours which will not be case if bail is sought after arrest. This is the salient feature guarding the A.B. applicant. He is in a privileged position of not having to be in judicial or police custody even for a moment for he has only to robe himself with the readymade package of bail in the police station itself. What the police have to do is to touch the body of the applicant to complete the formal arrest, enter the time of arrest in the Information Book and execute the bail bond adhering to the conditions of the order of the Magistrate. Under section 21 of Bail Act the applicant must have reason to believe that he may be arrested. The belief that he may be arrested must be found on reasonable grounds. Mere fear is not belief. It may just be a hallucination or imagination that some harm is going to happen. It must be a tangible belief projected to courts for its examination objectively. Then and then only can the court determine that the applicant has reason to believe that he may be arrested. He must not be obsessed with a veiled and vague apprehension of arrest. The Magistrate might require to know the basis for such an apprehension. If it sounds hollow, there is no need for A.B. and no cause for it either. The Magistrate has to bring his mind to the question to see whether he (applicant) has made a case for A.B. It may be easier to obtain A.B. in Sri Lanka than in India because the local section does not talk of accusation or commission of offence. It is basing itself on a mere account and suspicion of an offence being committed or concerned with it. It is easy to note that the Indian section needs some facts more specific than Section 21. If the accused is under arrest, no A.B. can be considered. It is tantamount to contradiction in terms. The section is meant to operate on arrest - not before or after arrest. The dominant consideration under Section 438 in India for the grant of A.B. should be whether the person has been implicated by some influential persons falsely for the purpose of disgracing him or getting him retained in jail for some days' - K. Jagdish V Dy. Supdt of Police (1983) 1 Crimes 41. Persons apprehending arrest can apply for grant of A.B. - Kailash Chand v State of Rajasthan (1984) 2 Crimes 616. The provisions of Section 438 of Cri. Pro. C. are not to be applied mechanically and A.B. should not be granted in every case for mere asking. The discretion to grant A.B. cannot be said to be totally untrammelled unfettered. Judicial precedent also can provide guideline or limitation to the discretion vested in courts'. For section 21 of Bail Act to operate no filing of 'B' reports or charge sheets are necessary. That is not a condition precedent. Interpretation A.B. is available to protect persons from being disgraced and humiliated by trumped up charges. A.B. can also be considered for a person who is not likely to abscond or misuse the liberty. No formula is available for the interpretation of the phrase 'reason to believe' in Section 21. The phrase is elusive and slippery with no direction to certainty and definitiveness. The apprehension of arrest must either be based on suspicion of a commission of offence or concerned with the commission of offence. It cannot exist in vacuum. The court has to consider facts - if not the application will fail. Under Section 21 the applicant cannot expect an all time blanket protection covering all imaginary, unspecified non existing accusation and suspicion. That is not what is contemplated in Section 21 Bail Act and Section 438 of Indian Cri. Pro. C. In Thayyanbadi Mithu Kun Hiraman v S.I. Police 1985 Cr. Law J. 1111 and Gurbaksh Singhe v State of Punjab A.I.R. 1980 S.C. 1632 it was ruled that the court must be satisfied that there is a reasonable chance of arrest in connection with some specified accusation. Section 438 will operate as an insurance against police custody following arrest. It could operate only against a specific offence or offences and not against offences in general' - Gurbaksh Singhe v State of Punjab (Supra). Under Section 21 the court has to consider the material placed before the Magistrate and not as to the truth of the materials to arrive at a decision for A.B. The ultimate result of the case before courts is not contemplated in the section. The Supreme court has in Balchands case (supra) observed thus; the power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty. A.B. cannot be granted in all cases as a matter of course. The exercise of the power has to be invoked in exceptional cases only. While considering the prayer for granting A.B., a balance has to be struck between two factors, namely - no prejudice should be caused to the free and full investigation and there should be prevention of harassment and unjustified detention of the accused. It cannot be granted as a matter of right. A few cases of recent past of important personalities on A.B. in India were added to its digest. A.B. was considered in Kerala High Court for P. Kumaran, former Mannarkad MLA in the Munna murder case. It was granted on the basis that the petitioner was a former MLA, there could not be any apprehension that he would, abscond if released on bail. Besides, there could not be any apprehension that he would tamper with the evidence in the case because investigation was being conducted by the Central Bureau of Investigation. Justice G. Sasidharan in considering A.B. concentrated on two factors, namely - the petitioner would not abscond and neither would he tamper with the evidence. This dominated his decision. Yet another recent case was that of Director General of Police F.C. Sharma who was accused of conspiring to torture Muslim prisoners in jails in the State. He was granted A.B. In the recent past former Prime Minister of India P.V. Narasimha Rao was an applicant for anticipatory bail. It is wise and fitting to dwell into the case to realise how important the piece of legislation on A.B. is and how well it protected him from disgrace and humiliation in the eyes of the public. Conviction Narasimha Rao and several others were involved in the Jharka and Mukti Morch (JMM) bribery case. They were convicted by the Trial Court. But Delhi High Court acquitted him setting aside the conviction. Rao was granted A.B. by Delhi High Court. Accepting his plea for A.B. Justice Mahajan observed that the maximum sentence provided by Prevention of Corruption Act under which Rao and others were charged was five years while the minimum was six months. Justice Mahajan citing a Supreme Court decision in Anukul Chandra Pradhan v Union of India noted 'while delaying with cases involving public men, no occasion should arise for an impression that the publicity attached to these matters has tended to dilute the emphasis of the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial'. He was also satisfied that he (Rao) while on interim bail (provision in India) had not tampered with evidence or influenced witnesses. He also noted that he was the former Prime Minister who was always under the protection of the Special Protection Group and his movements were known to everybody. He further noted that his family members are residing in India and that Rao was also suffering from a serious medical problem. Taking all these factors into consideration he concluded that he should be granted anticipatory bail as he will not flee from justice or tamper with evidence. At the trial his defence lawyer argued that the case was false and politically motivated. In the wake of Rao's A.B. application and what followed on the trumped up charge of bribery and corruption, it has justifiably proved that Section 21 of the Bail Act and Section 438 of Indian Cci. P.C. should occupy a prominent place in their respective statute books. But for this section, even though he was one time Prime Minister, Rao would have had to go through the rigours of jail till the bail matter was decided. I am more than convinced that anticipatory bail does more good than less or no harm to justice. Care and caution has to be exercised in its interpretation and implementation. This cannot be over emphasised. Is it then a necessary evil ? - Ex. Justice, Dr.L.M. Jayaratne, Former Governor S.P. |
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