Not necessary that accused must be in country to apply for Anticipatory Bail, Calcutta HC [Read Order]
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Not necessary that accused must be in country to apply for Anticipatory Bail, Calcutta HC [Read Order]

Meera Emmanuel

The Calcutta High Court recently highlighted that the presence of an accused within the country is not a necessary pre-condition for the grant of anticipatory bail. While passing an interim order in anticipatory bail pleas filed by two members of the political outfit, Gorkha Janmukti Morcha, a Division Bench of Justices Manojit Mandal and Joymalya Bagchi, sitting at the circuit Bench of the High Court at Jalpaiguri, observed,

“… the imposition of a condition on an accused not to leave the country without the permission of the Court upon being granted the relief of pre-arrest bail is a discretionary one depending on the facts of the case...There may be cases where an accused lawfully residing in a foreign country apprehends arrest due to the imminent threat of execution of a coercive process in a contracting State in the course of investigation pursuant to order passed by an appropriate court under section 105-B of the Code of Criminal Procedure or by way of extradition proceedings.”

Referring to Section Section 438(2) of the Code of Criminal Procedure, which allows courts the discretion to impose a condition that the person seeking pre-arrest bail should not leave India without court permission, the Bench clarified,

Although the aforesaid condition gives rise to an inference that an accused ordinarily ought to be within the country while seeking the relief of pre-arrest bail, it cannot be read to understand that in all cases an accused seeking pre-arrest bail must definitely be within the country.

The case before the Court involved a batch of criminal cases filed against several members of the Gorkha Janmukti Morcha, including the two petitioners, over an agitation launched against the imposition of the Bengali language in Darjeeling Government Schools. The petitioners claimed that the cases were launched as consequence of political vendetta, whereas the State counter-claimed that the agitators had turned violent leading to loss of human life and extensive property damage.

The petitioners had earlier approached the Supreme Court seeking a transfer of the investigation from the State Police to an independent investigating agency. However, the prayer was declined. In one writ petition, the Supreme Court had specifically granted one of the petitioners to file a plea for anticipatory bail, during the pendency of his plea.

The State, however, contended that the anticipatory bail pleas were not maintainable, given the Supreme Court’s dismissal of their earlier petitions and given the delay in filing their pre-arrest bail pleas before the High Court.

Unreasonable fetters cannot be put on right of an accuse to apply for Pre-Arrest Bail

The Bench, however, rejected the state’s contention after noting that the Supreme Court’s dismissal of the petitioners’ pleas were only on the point of transferring the investigation to a Central investigating agency. In this backdrop, the Court emphasised that it cannot refrain from hearing pre-arrest bail pleas altogether, more so given that it concerns the personal liberty of the petitioners. As observed in the order,

It is one thing to argue that the prayer of an accused for pre- arrest bail ought not to be granted on merits, however, it is entirely different to contend that he cannot be heard at all in the matter of grant of such relief.

Pre-arrest bail to an accused is a species of relief which falls within the genus of personal liberty enshrined under Article 21 of the Constitution of India. Though the provision for pre- arrest bail is statutory in nature and does not partake the character of a constitutional remedy, any issue of demurrer raised qua maintainability of such relief, must be strictly construed bearing in mind the fact that a “procedure established by law” making inroad into personal liberty must be fair, just and reasonable and not an arbitrary and oppressive one. Sweeping and unreasonable fetters put on the right of an accused to access such relief, may render such restriction violative of the fundamental right to liberty under Article 21 of the Constitution of India.”

The other objection raised by the State was that the two petitioners had illegally fled to another country. Therefore, they should not be granted pre-arrest bail. However, as noted earlier, the Court highlighted that the petitioners’ absence in the country itself would not preclude them from applying for anticipatory bail.

All the same, the Bench went on to note that if the State’s claims concerning the petitioners’ attempt to evade law and secret themselves in another country were true, the same would be factored in while decided on their plea for anticipatory bail. As noted in the order,

However, the situation in the present case is much more sinister and requires deeper scrutiny as it is alleged that the petitioners seeking anticipatory bail have illegally fled the country without valid permission and have secreted themselves in a neighboring country. Court would necessarily require to factor in such daring and dangerous conduct of an accused while considering the prayer for pre-arrest bail.”

In view of these observations, the Court directed the Government to file its submissions concerning claims that the petitioners had fled to another country illegally. The Court said,

“No doubt, allegation that the petitioners have illegally left the country and have secreted themselves in a foreign State is a serious matter and assumes paramount importance while considering their prayers for pre-arrest bail.

However, as such allegation has been raised for the first time in Court today in the course of arguments and do not form a part of the affidavit filed on behalf of the State, we consider it prudent to direct a responsible officer of the State to file an affidavit disclosing relevant facts relating to the abscondence of the petitioners beyond the territory of India so that they may respond to such allegations in an effective manner. “

Further, the Court also granted the parties liberty to approach the Principal Bench of the Court, as per their convenience.

[Read the Order]

Calcutta-HC-order-Aniticpatory-Bail-August-26-2019.pdf
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