Anticipatory Bail

Anticipatory bail vis-à-vis 498A- IPC! Delhi High Court Ruling.

Introduction

The word “Stridhan” is derived from two words “Stri” (Women) and “Dhan” (Property) which etymologically means woman’s property. It is the property over which a woman has got absolute power of disposal. Though there is no outlined definition of Stridhan, there are some acceptable sources of stridhan i.e., Gift and Bequests from relative or strangers during maidenhood, property given in lieu of maintenance, property acquired by mechanical acts or self exertion, property acquired by adverse possession etc. The issue considered under this article is “Whether on the sole ground of recovery of stridhan the alleged accused in a complaint u/s 498-A IPC, can be denied his right of anticipatory bail under Section 438 of Crpc?”

Concept of Anitcipatory Bail

Section 438 of Code of Criminal Procedure lays down the provisions wherein a person apprehending arrest on account of having accused of a non-bailable offence, may apply for bail to High Court or Court of Sessions that in the event of arrest, he shall be released on bail.

This provision is also known as anticipatory bail- though not defined in the act, encapsulates applying for bail in anticipation of being arrested on account of being accused of committing a non-bailable offence in contrast to the general procedure of applying for a bail after being actually arrested. The object of section 438 of the code is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. Though the Court may deny the anticipatory bail as it solely based on the judicial discretion which is to exercised on sound judicial principles and court can deny exercising the power if it is apparent that the accused may hamper the process of investigation or tamper the evidence by threatening the complainant/witnesses.

Factors to be considered while granting Anticipatory Bail

 The Court takes into consideration following factors before giving such directions:

1. Whether the accusation has been made to insult/humiliate the applicant (being a respectable person of the society) by having him arrested,
2. The nature & gravity of the offence,

• Antecedents of the applicant as to whether the applicant has been convicted earlier in respect of any cognizable offence,

1. Possibility of the applicant to flee in order to avoid prosecution.

41^st Law Commission Report

Since the provision of anticipatory bail was not provided for in the Old Code of Criminal Procedure 1898,  it was introduced in Code of Criminal Procedure 1974 on the recommendations of the Law Commission in its 41^st Report suggesting in para 39.9:

“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, this 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.”, and recommended introduction of a provision for grant of ‘anticipatory bail’. This recommendation was accepted by the Central Government and clause (447) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session or a High Court/to grant ‘anticipatory bail’.

The 48th Report of the Law Commission cautioned that the power of anticipatory bail is a power that must be exercised in ‘very exceptional cases’. Although the legislature in its wisdom was keen to protect personal liberty and presumption of innocence, it has led to the rampant misuse of the provision. Thus it further, recommended that to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after a notice to the public prosecutor. The initial order should only be made interim. It was also suggested that the directions may be issued only for the reasons recorded, if the Court is satisfied that such a direction is necessary in the interest of justice.

While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and on the other hand harassment, humiliation and unjustified detention of the accused be avoided.

A five-judge bench of the Supreme Court ruled in the case of Gurbaksh Singh Sibbia vs State of Punjab (AIR 1980 SC 1632) held that CrPC Section 438 (anticipatory bail) is a procedural provision that concerns the “personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence”.

Recently in 2021, a three-judge bench of the Supreme Court vide its judgement in Criminal Appeal Nathu Singh vs State of Uttar Pradesh stated that the genesis of this jurisdiction (438 CrPc) lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the courts must not read in limitations or restrictions that the legislature had not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief.

498A- IPC

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

The offence is punishable with imprisonment upto 3 years & is Non-bailable.

Anticipatory Bail vis-à-vis 498A

High Court of Delhi while hearing an application Pooran Singh v/s State of Delhi u/s 438 CrPC wherein the applicant was accused of offences u/s 498-A, 406 & 34 IPC (without going into the merits of the case) explained at length the law relating to the grant or denial of anticipatory bail in such cases.

It is pertinent to note here that the application u/s 438 CrPC made by the applicant in the Court of Sessions was rejected by the Additional Special Judge, Rohini with the following observation:

“Since, the custodial interrogation of the applicant is required to recover the dowry articles and Istridhan and the complainant is receiving the threat constantly on whatsapp from the applicant. I find no ground to admit the accused on bail”

Aggrieved by which the applicant moved to High Court for bail u/s 438 CrPC.

The High Court while allowing the application of the accused, stated that

“The recovery of Istridhan alone cannot be a reason to deny anticipatory bail to the Petitioner. The police are vested with sufficient powers under the Cr.P.C to conduct searches of premises. Further, the material on record shows that there are cross-complaints. The petitioner had filed a complaint in 2018 stating that the complainant’s father is threatening him. There is nothing on record to show that the Petitioner and his family are in such a position that they would be able to threaten the witnesses. It is trite law that the Police Officer before arresting the accused who is accused of offence which is punishable with imprisonment for a period of seven years has to be satisfied that such arrest is necessary to prevent a person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him by disclosing such facts to the Courts or the Police Officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. As stated earlier, the mere fact that the recovery of Istridhan cannot be the sole ground for arresting a person for an offence under Sections 498-A and 406 IPC.”

Conclusion

Section 498-A was introduced to curb the growing menace of the cruelty that was being metted out upon married women by their husband & his relatives for dowry. However, there have been many instances where this law has been misused by women to harass their husband & his relatives. According to the NCRB Report in the year 2018, the conviction rate in cases of 498-A has been the lowest among all other IPC crimes and only 1 out of 7 cases under sec. 498-A resulted in conviction in 2018. Since then, there has been an ever-growing demand by the aggrieved strata of the public that there should be some kind of balancing act so as to avoid the misuse of the law. The offence under the section is made non-compoundable and non-bailable means the parties cannot compromise between themselves and drop the charges nor the accused can claim right of bail as a matter of right. The law commission in its 237^th report titled ‘Compounding of IPC offence’, 154^th report of law commission and the report of Justice Mallimath Committee on Criminal justice reform recommended that it should be made Compoundable and Bailable.

The Personal liberty of the individual is a valuable right protected by the Constitution of India. The principle of Bail Not jail is also accepted by The Supreme Court in Gudikanti V Public Prosecutor AIR 1978 SC 429 held that basic rule should be “bail not jail” except where there are circumstances suggesting accused fleeing from justice, possibility of repeating the offence and like. Since the Provision of anticipatory bail are based on discretion of court so it is the duty of the court to balance the wheel of justice in such a manner that the provisions of law are not misused by any party nor the right of the accused of Bail not jail be denied if the balance of probabilities incline in favour of the accused while following the procedure established by law.

To sum up, this judgement outlines the contingencies involved while granting or denying Anticipatory bail to the person accused & comes as a ray of hope for the aggrieved section of society who have been frivolously implicated in concocted litigation arising out of personal vendetta of the parties.