Surrender First, Then Seek Bail-Supreme Court

‘Pre-arrest bail most abused provision’

The pre-arrest bail provision in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of the police, is the most abused, the Supreme Court said on Monday.

Its anguish stemmed from the fact that a discretionary power vested with the high courts and sessions courts was being repeatedly invoked by persons accused of heinous offences, which was not the intent of the relief-giving provision.

Exasperated by the large number of pre-arrest bail petitions flooding the HCs and even the Supreme Court, a vacation bench comprising Justices Arijit Pasayat and P P Naolekar said: “Now rapists, triple murder accused and most corrupt have started seeking anticipatory bail making the provision one of the most abused sections of the Criminal Procedure Code.”

The bench passed a standard order in all anticipatory bail petitions — let the accused surrender before the trial court and then seek bail. However, it also asked the trial court to hear the bail petition on the day it was filed before it.

Section 438 of CrPC, which deals with pre-arrest bail, provides: “When any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the high court or the court of session; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

The section mandates that all prearrest bails would have at least three conditions attached to it — the accused should cooperate in investigation, not tamper with evidence or influence the witness, and not leave the country without prior permission of the court.

The Law Commission of India, in its 203rd report to the law ministry, had extensively dealt with the practicality of an amendment to the pre-arrest bail provision brought in under the CrPC (Amendment) Act, 2005, which had made it mandatory for the person seeking pre-arrest bail to be present before the court during the final hearing of his application. The commission had opined against the provision. However, Chief Justice of India K G Balakrishnan had recently made a grievance of pre-arrest bail petitions flooding the HCs because Section 438 of CrPC gave concurrent jurisdiction to both HCs and sessions courts.

Justice Balakrishnan had said: “As the court of sessions has the power to deal with sessions cases resulting in the imposition of death sentence or imprisonment for life, there is no reason why such a court could not be considered adequate to deal with applications for grant of anticipatory bail. Needless time of the high court would be spent in dealing with applications for grant of bail.” “We, therefore, recommend that Section 438 of the CrPC be suitably amended restricting the power of granting anticipatory bail to the court of sessions,” he had said.

With thanks from The Times of India 10 June 2008 P. 11 Delhi
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