Proscribing the prescription for pre-arrest bail: Critique of a recent Supreme Court decision

Disquietingly, the Supreme Court recently dealt a colossal blow to the basic rule of ‘bail, not jail’ vide its ruling in State of Haryana v. Dharamraj. In a matter involving pre-arrest bail of an accused person, the Court not only denied liberty to the petitioner, but did so by overturning the relief as determined in his favour by the concerned High Court.

Curiously though, even while denying pre-arrest bail to the accused, reliance was placed on a series of judgments whereby the Court clearly outlined that "an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted" and that "when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial."

Clearly, the Court has been rather recalcitrant in cancelling the relief of bail/anticipatory bail already granted, unless there is supervening arbitrariness and perversity coupled with circumstances under which bail was granted. Nevertheless, in the Dharamraj ruling, the Court in its discretion concluded that the factors weighing with the concerned High Court did not meet the litmus test in allowing pre-arrest bail of the accused. The State’s appeal was allowed, with the Court concluding that "the logic of the High Court does not commend itself to us."

Of course, there can be no quarrel with the Court’s appreciation of the reasoning, or lack thereof, as employed by the High Court. However, what is disconcerting to an extent is how the Court has sought to wedge the ruling in between the intersection of provisions of the Code of Criminal Procedure, 1908 (CrPC) - specifically Sections 82/83 dealing with ‘proclamation of person absconding’ along with ‘attachment of property of person absconding’ and Section 438 concerning ‘grant of bail to person apprehending arrest’.

In essence, the Dharamraj judgment has effectively adjudged that any person having been declared a ‘proclaimed offender’ in accordance with Section 82 CrPC must first assail such proclamation, devoid of which the concerned courts cannot consider a plea for pre-arrest bail.

Briefly outlined, upon completion of investigation in a criminal trial, the ‘police report’ as per Section 173(2) CrPC is forwarded to the concerned magistrate. The concerned magistrate in line with Sections 87/88 CrPC may, thereafter, in cases wherein the accused is not already in custody, proceed with issuance of summons in the first instance. However, as the apex court noted in its judgment in Satender Kumar Antil v. CBI, issuance of non-bailable warrants (NBWs) has become par for the course without due application of mind and the same is starkly against the tenor of the provisions enshrining judicial discretion in curtailing liberty of any person. Naturally, the course of action post issuance of NBWs is to initiate proceedings for declaring such a person as a proclaimed offender under Section 82 CrPC.

It is no one’s case that the power of the magistrate ought be curtailed in ensuing the presence of an accused in a criminal trial. However, what is noteworthy is the cavalier manner in which Indian criminal courts issue warrants seeking attendance. Quite unfortunately, the authors herein, in matters still sub-judice and therefore not being named, have been privy to such disregard for liberty wherein bailable warrants and thereafter non-bailable warrants were issued against the accused despite delivery/service of summons having never been ensured and confirmed by the concerned magistrate. The sole reason for the same was that the accused was already in custody in relation to another offence and was never produced before the concerned magistrate by the police.

Due to such non-attendance and non-revelation of the accused’s judicial custody in relation to a separate offence, the magistrate proceeded to initiate proceedings under Section 82 CrPC. Upon release from custody, only an order granting pre-arrest bail and/or interim relief shall prevent such an accused from being taken into custody de novo. Unfortunately, this is a ploy employed ever so often by our investigative agencies and with impunity, for the mere fact that the concerned magistrate court fails to ensure strict application of the law.

It must accordingly be outlined that the Court’s ruling in Dharamraj, insofar as it requires assailing proceedings under Section 82 CrPC to obtain pre-arrest bail, does not commend itself to the law nor to practicalities of a criminal trial. The Court in Dharamraj, having placed reliance on earlier judgments of Lavesh v. State NCT of Delhi and State of Madhya Pradesh v. Pradeep Sharma, failed to consider the evolution of the law on pre-arrest bail as outlined by the five-judge bench in Sushila Aggarwal v. State NCT of Delhi, whereby the Constitution Bench aptly outlined that,

“…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 to justification to require him to first submit to custody, remain in prison for some days and then apply for bail.”

The Bench went on to add that,

“…the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he or she be not arrested; it was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognised as a widespread malaise on part of the police.”

On a conspectus of the law as it prevails, the plain and literal language of Section 438 CrPC governing pre-arrest bail does not commend itself to any superimposed or artificial restrictions as to its operation. In fact, the Bench in Sushila Aggarwal went so far as to add that "if the court were to weave conditions to impose and read into Section 438 that are not expressly provided, the danger would be that several applicants who might otherwise be entitled to relief might be denied it altogether."

This is precisely the apprehension that the Dharamraj ruling gives rise to, for it remains a reality that investigative processes in India are far from dispassionate and the powers of arrest are exercised in a cavalier manner by the agencies. In that regard, if a dictum by the highest court of the land were to further proscribe the right to seek pre-arrest bail in apprehension of arrest, the same will severely dent the right to liberty on a mere accusation, despite the cardinal rule of ‘presumption of innocence’.

It is beyond contest that no accused can claim an inviolable right to unconditional protection from arrest. However, imposition of such conditions must be curtailed to a case-by-case basis and the Supreme Court ought be mindful of the fact that a mere nudge by it may filter down to the courts below as impetus to reject the right to be protected from arbitrary arrests and curbs on freedom.

Ivan is an Advocate-on-Record at the Supreme Court of India.

Vivek Mathur & Siddharth Agarwal are Partners in SVI Legal, a disputes resolution law firm with offices in New Delhi and Jodhpur.