PIL in Madras High Court challenges insistence on sworn affidavit when filing for anticipatory bail

A public interest litigation (PIL) petition has been moved before the Madras High Court challenging Rule 12 (4) of the Criminal Rules of Practice, 2019 applicable to the High Court (KS Ilangovan v. High Court of Judicature at Madras and ors)..Rule 12 concerns rules governing bail in non-bailable cases. Sub-clause (4) of the said Rule mandates that a sworn affidavit should accompany applications filed under Section 438 of the Code of Criminal Procedure (CrPC), which deals with pre-arrest bail or anticipatory bail. .Rule 12 (4) of the Criminal Rules of Practice states:"Application for relief under section 438 of the Code shall be accompanied by a sworn affidavit of the applicant.".The petitioner has raised concern that insisting on a sworn affidavit along with the pre-arrest bail application may prejudice the case of the accused-applicant. Such an affidavit is not required, and the anticipatory bail petition alone is sufficient, the petitioner has argued. .Inter alia, reference was also made to Section 4 (2) of the Oaths Act, 1969 which states:"Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.".A sworn affidavit is like an oath, the petitioner submitted before the Court on Wednesday. .The High Court's counsel argued, inter alia, that such sworn affidavits are required particularly in matters relating to financial misappropriation, economic offenses etc., where the accused may be required to make deposits, create undertakings etc. .After hearing submissions made by both parties, the Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu directed that a copy of the petition be forwarded to Advocate General R Shunmugasundaram. .The Chief Justice also orally requested the Advocate General to advice the Court on whether there is any element of unworkability or concerns regarding bias or efficacy in implementing the Criminal Rules of Practice in question. .The matter has been posted to be taken up next after the upcoming Diwali vacation.