In Black’s Law Dictionary, bail has been defined as “a security such as cash or bond especially security required by a court for the release of a prisoner who must appear at a future date.”
This constitutes a very important element in our entire criminal justice system because it concerns the personal liberty of an individual, our constitution places personal liberty at a very high pedestal. The Hon’ble Supreme Court at many instances has emphasised the importance of following due process in the matter of arresting. The law regarding bails as well as anticipatory bail is all about balancing, on the one hand there is presumption of innocence, the right to liberty etc. on the other there is public interest it is the courts that has to somehow reconcile the tool. Thus the factual matrix of each case is important for the grant of a bail or a anticipatory bail application. The power of section 438 Cr.P.C being an extraordinary remedy has to be exercised sparingly. The Supreme Court in the case of Kamlapati v. State of West Bengal,1980 SCC (2) 91 defines bail as a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial.‟ Now basically the bail and anticipatory bail are different to each other in terms that anticipatory bail is a pre arrest bail whereas a regular bail is a bail after the event of arrest has taken place. The guidelines and concepts are different between bail and anticipatory bail. Further discussing about the anticipatory bail, The innocence of an individual can’t be questioned till he’s established guilty in a criminal trial, bail is concomitant and inherently tangled with a person’s right to innocence and freedom till established guilty. Anticipatory bail may be a leap forward during this notion that permits the person to retain his right to freedom within the anticipation of his arrest with a reasonable cause. Way back The Hon’ble Supreme court in the case of Balchand Jain vs State of MP 1977 AIR 366,1977 SCR (2) 52. Court had observed Anticipatory bail means a bail in anticipation of arrest .
In the Cr.P.C., 1898, there was no provision similar to section 438 of the 1973 Code which could provide for anticipatory bail. Anticipatory bail was, however, granted in certain cases by the High Courts’ inherent powers although the dominant read negatived the existence of any such jurisdiction. The Law Commission in its 41st Report, recommended the indulgence of a provision within the Code enabling the high court judicature and also the Court of Session to grant “anticipatory bail”. The Commission viewed that “the necessity for granting anticipatory bail arises chiefly as a result of typically authoritative persons attempt to implicate their rivals in false cases for the aim of disgracing them or for alternative functions by obtaining them detained in jail for a few days. As of late, this inclination is giving indications of consistent increment. Aside from false cases, where there are sensible reason for holding that an individual blamed for an offense isn’t probably going to steal away, or in any case abuse his freedom while on bail, there appears to be no support to require him first to submit to care, stay in jail for certain days and afterward apply for bail.A judgement which needs to be pointed out is a Constitutional Bench Judgement in the case of Gurubaksh Singh Sibbia v. State of Punjab,(1980) 2 SCC 565(1980) SCC (Cri)465.The Constitution Bench in this case consisting of five judges bench emphasized that provision of anticipatory bail enriched in Section 438 of Cr.P.C is conceptualised under Article 21 of the Constitution which relates to personal liberty, therefore such a provision calls for liberal interpretation of Section 438 Cr.P.C in the light of Article 21 of the Constitution. The court also stated that there is no restriction that anticipatory bail should be given in exceptional cases, Section 438 should be in short always be interpreted in the light of Article 21 of the constitution it held granting of anticipatory bail is a matter of right of individual should not be limited by time and court can impose restrictions on case to case basis. Whereas, In Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: SC overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time. “Finally in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 The Supreme court laid down firm guidelines in granting the anticipatory bail.
Also when in a case the court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail unless a person is arrested and, therefore, it is only upon arrest that an order granting ‘anticipatory bail’ becomes operational. This very thing is to be understood properly that anticipatory bail order becomes active when the police or the investigation agency initiates to arrest the person and the event of arrest shall take place.
Scope of Anticipatory Bail
The offences has been categorized generally into two categories bailable offences and the non bailable offences ,in terms of the bailable offences the bail is treated as the right of the accused person while under the category of non bailable offences the bail is to be considers as the discretion of the Court adjudicating the application of bail keeping in mind the very thing that the accused should not be deprived of his fundamental rights as well as the society will not suffer because of the accused if he has been granted bail. Now,Anticipatory bail is granted in anticipation of arrest the anticipatory bail ensure freedom till the regular bail application decided by the Court. It means where a person has a reasonable ground that he may be arrested for an non-bailable offence by the police on suspicion, to prevent such arrest the person moves an application in an appropriate court seeking bail in advance prior to his arrest this procedure is called anticipatory bail. Where the application of the person has been allowed then he shall show that order of Court regarding anticipatory bail when the police come to arrest him, on producing such order the person shall be released on bail. This option of anticipatory bail is available to every person who is been suspected of committing or involved in some non-bailable crime or offence.
The High Court and the Session Court both have concurrent jurisdiction to hear the anticipatory bail, but in general practise as a matter of alternative remedy it is preferred to file a bail firstly before a session court and thereafter the High Court. Under section 438 the specific word which differentiate it with other sections relating to bail is “if it thinks fit” these words means that Courts have been given discretionary powers to grant anticipatory bail in non bailable offences.
The court of session or high court can grant anticipatory bail (both having concurrent jurisdiction) after considering the following factors:
1. Gravity of allegations
2. Antecedents of the accused approaching for the anticipatory bail
3. Chances to flee from justice
4. Chances that he may threaten the witnesses and tamper the evidences.
5. Whether any malicious prosecution is possible
Once a person has been enlarged on Anticipatory Bail, if arrested he would be released forthwith by the Officer-in-charge and if the court has to issue warrant, it would be a bailable warrant in first instance only. Though only Court of Session and High Court has power to grant Anticipatory Bail, a Special Leave Petition against the order of High Court is also maintainable if admitted by Supreme Court. A person may apply directly in High Court or approach High Court on dismissal of Anticipatory Bail application by Session Court.
In a recent pronouncement The Supreme Court in Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that ordinarily no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial. The Court made reference of India’s freedom movement claiming that arbitrary arrests, indefinite detentions, and lack of institutional safeguards played an important role in rallying the people to raise the demand for Independence. A five judges bench observed that if any court which wants to limit the bail it can attach special features to it.There should not be any general rule but it is up to entirely upon the discretion of the court
Thus in this case the scope of anticipatory bail has been extended but in a case if the proceedings of proclamation and attachment has been issued against the accused person then the limit of anticipatory bail will be effected.
Anticipatory Bail in the State of Uttar Pradesh
Anticipatory bail under section 438 was precluded from the Code of Criminal procedure (Uttar Pradesh amendment Act), 1976. This made anticipatory bail seekers surge either to the High Court or to the
Hon’ble Supreme Court. The Constitution vests powers under Article 246(2) to states to frame laws on the topics counted inside the concurrent list. The concurrent list secures uniformity within the main principle of law throughout country then on avoid excessive rigidity to two-list distribution. In this way, the states cause laws regarding to their political, social, financial and different necessities of that area. The crisis stage made it the necessity of great importance for the state to enact on certain current laws in order to check socio-political showings. Consequently, activities taken by the territory of Uttar Pradesh are frequently validated. Nonetheless, the execution shouldn’t be in a self-assertive way where the re-inclusion of the Segment in regards to anticipatory bail wasn’t started and joined till next 43 years bringing about the negation of the fundamental rights appreciated by the residents presented by the constitution Along these lines, it totally was significant that the justification for anticipatory bail be developed in Uttar Pradesh in such manner that central thought is given to the standard of crucial rights and produce the instrument at standard with the contrary conditions of India. There was a constant interest for its recovery and a few writ petitions were additionally documented. The State Law Commission had suggested rebuilding of this arrangement in its third report in 2009. An advisory group was comprised by the state government under the chairmanship of Additional Chief Secretary to the Uttar Pradesh Government of the Home Department, Special Secretary of the Legislatives, DG Prosecution and Additional Director General of Police (Crime) had also recommended the restoration of the provision. Thus, the provision of the anticipatory bail has been reinstated in Uttar Pradesh, providing the remedy for the accused to get anticipatory bail in non-bailable offences. The Allahabad High court and the apex court had been pressing the state government to re-apply this law. Thus the Section is laid down on the road map of the 2005 Amendment of the Cr.P.C. as provided under section 438(1),(2), (1A) and further providing State amendments as:-
1. The disposal of the application of Anticipatory bail should be within 30 days by the sessions court or the high court
2.If an application has been filed before high court because of the concurrent jurisdiction and the same is disposed of the same application will not be filed in the sessions court.
3. The person will not be enlarged on anticipatory bail in the offences of the following Acts
(i) The Unlawful activities (Prevention) Act, 1967
(ii) The Narcotic Drugs and Psychotropic Substances Act, 198
(iii) The Official Secret Act, 1923
(iv) The Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986
(v) Offences having punishment till death penalty.
Thus having discussed about the several judicial pronouncements of the apex court it can be rightly said in my opinion that there is no such hard and fast rule in the grant of anticipatory bail , In reality the discretion is of the court which is adjudicating the anticipatory bail application. The fundamental cannon of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty should be followed by the court. Likewise the law-making body has not delineated court’s circumspection in any way while conceding expectant bail, along these lines, the court ought not restrict the request just for a predetermined period till the charge-sheet is filed and from that point constrain the denounced to give up and request regular bail under Section 439 of Code of Criminal Procedure. The governing body has given wide prudence to court in the matter of expectant bail in light of the fact that the court needs to apply it as per the specific situation and conditions of each case. The main rational behind the anticipatory bail is just like an insurance that an individual’s liberty is not being hampered unnecessarily and the trust pf people should be maintained in the criminal justice system. It is a device to protect the right of liberty of a person. Since many years, anticipatory bail has come to mean a safeguard for a person who has been falsely been implicated or charges made against him or her, most commonly because of enimity,as it ensures that if a person is falsely implicated he or she will be released because of this provision. Anticipatory bail is one amongst the foremost hotly debated subjects within the Indian criminal justice system. While, on one hand, it’s said to be the custodian of the basic right of life and liberty of a private, it’s also seen as some way to waste judicial time. in a very country that already battles extreme pendency of cases, the stakes do seem high Arbitrary and motivated arrests are an unfortunate reality in India and are only rising. Therefore, it might not be knowing strike down the supply of anticipatory bail as doing so would be detrimental to the guaranteed right of liberty. what’s essential is that a balance always is maintained between the non-public liberty of a personal and therefore the must maintain law and order in society. The courts should exercise their discretion wisely and in ways in which are just and fair, keeping in mind the principles of natural justice.
Adv. Shivanshu Goswami practises at the Lucknow Bench of the Allahabad High Court.
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Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court
The Supreme Court in the case Ashwani Kumar vs Union Of India And Ors. Ministry Of Social Justice and Empowerment Secretary & Ors observed and has directed that all the States and Union Territories to furnish information on their existing schemes operating for the welfare of the elderly with respect of (i) Pension for the elderly, (ii) old age homes in each District and (iii) the level of geriatric care.
In the present case, the bench also asked the State and Union Territories to file the present status regarding implementation of the Maintenance and Welfare of Parents and Senior Citizens Act and has asked them to furnish the information to the Advocate-on-Record of the Union of India and the Union shall thereafter file a revised status report within a period of one month.
The Apex Court bench comprising of Justice Aniruddha Bose and the Justice Sudhanshu Dhulia observed while hearing a petition filed under Article 32 of the Constitution of India by former Union Law Minister Dr. Ashwani Kumar regarding the enforcement of the rights of an elderly person.
It was observed that the Supreme Court had earlier in 2018 passed similar directions while passing a judgment in the matter. It was directed to Union of India for obtaining necessary information from all the State Governments and the Union Territories about the number of old age homes and medical facilities and geriatric care facilities that are available to senior citizens in each district and file a status report, also the Union of India was directed to prepare a plan of action for giving publicity to the provisions of the MWP Act and for making senior citizens aware of the provisions of the said Act and the statutory and constitutional rights of senior citizens.
Also, the court had directed that the Government of India to issue appropriate directions to the State Government for effective implementation of the MWP Act and also conduct a review for the purpose of monitoring the progress. It stated that the Government of India was also directed to revisit the schemes and overhaul them so that it may be more realistic.
The Court observed while passing the judgment and order in 2018 that there is a need to continuously monitor the progress in the implementation of the constitutional mandate to make available to the elderly the right to live with dignity and to provide them with reasonable accommodation, the medical facilities and the geriatric care and had noted that focused and more vigorous efforts were needed in the case.
Accordingly, the matter was kept open by the court.
Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses
The Central Government in the case Ashwini Kumar Upadhyay versus Union of India observed and has proposed to submit before the Supreme Court a model builder-buyer agreement with mandatory clauses which cannot be altered by the Union Territories or the States.
Before the Court, Additional Solicitor General Aiswharya Bhati and amicus curiae Devashish Bharuka submitted that the Court that the model agreement will have Part A which will have core clauses with the mandatory provisions of the Real Estate (Regulation and Development) Act 2016 for the purpose of protection of the home buyers and the Part B which will contain additional clauses as per the requirements of the individual UTs /States. Thereafter, these additional clauses will not be contrary to or dilute in any manner the clauses in Part ‘A’.
The bench comprising of Justice DY Chandrachud and the Justice Hima Kohli observed and has posted the matter for further consideration on November 28, while taking the note of these submissions.
It stated that the development happened in the PIL filed by Ashwini Upadhyay seeking a model builder-buyer agreement. Earlier, it was observed by the Supreme Court that a model agreement was necessary to protect the interests of home buyers and had asked the Union to frame a model agreement after taking inputs from the States. Later, it was asked by Court to the Union to scrutinize the rules framed by the States under RERA to ascertain if essential norms have been incorporated.
Further, it was observed that on September 30, the following States have not submitted their responses:
(i)Andhra Pradesh; (ii) Gujarat; (iii) Chhattisgarh; (iv) Jharkhand;(v) Madhya Pradesh;(vi) Maharashtra;(vii) Manipur;(viii) Mizoram;(ix) Odisha;(x) West Bengal; and (xi) Uttar Pradesh.
On the other hand, the response has been filled by the thirteen States and two Union Territories.
Thus, the States which have not filed their responses were directed to do so positively within a period of four weeks and failing which the Principal Secretaries of the State Government in the Ministry of Affairs/Urban Development shall personally remain present before the Court on the next date of hearing and to explain as to why they should have not been proceeded with under the coercive arm of the law created.
The court was informed by the Haryana and Maharashtra wings of the Confederation of Real Estate Developers Associations of India (CREDAI) that they will give their responses.
Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban
Delhi High Court judge Justice Dinesh Kumar Sharma has been appointed by the Central Government as the Presiding Officer of the Unlawful Activities (Prevention) Tribunal which will be reviewing the ban imposed on the Popular Front of India (PFI) and the organisations affiliated.
On 28th February, 2022, Justice Sharma was appointed as a judge of the Delhi High Court, after being elevated from the Delhi Higher Judicial Service.
On September 28, the Ministry of Home Affairs declared the PFI and its affiliates or associates or fronts as “unlawful associations” with immediate effect starting for a period of 5 years in exercise of the powers provided under Section 3(1) of UAPA. However, citing links with terrorist organizations and involvement in the terror acts, the Centre proscribed its affiliates Rehab India Foundation (RIF) and PFI, Campus Front of India (CFI), National Confederation of Human Rights Organization (NCHRO), All India Imams Council (AIIC), Junior Front, Empower India Foundation, National Women’s Front and Rehab Foundation, Kerala.
It is stated that as per Section 3 of the UAPA Act, where any association has been declared as unlawful, the Central Government shall, within thirty days from the date of the publication of the notification, while referring to the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association as unlawful.
Adding to it, as per Section 5 of the UAPA Tribunal should consist of one person and the person should be a High Court judge. On receipt of the notification, the Tribunal will be calling upon the affected association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared as unlawful.
Further, the notification of the Centre will have no effect until the Tribunal has confirmed the declaration and the order is published in the Official Gazette by an order made under Section 4.
As per the notification issued by the Ministry of Law & Justice of appointing Justice Sharma and the time spent by him in performing the duties of the UAPA Tribunal will count as “actual service” within the meaning of para 11(b)(i) of Part D of the second schedule of the Constitution reading with Section 2(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act 1954.
Supreme Court Dismisses Plea Against EVM: ‘Party Without Recognition From Electorate Seeking Recognition By Filling Petitions’
The Supreme Court in the case Madhya Pradesh Jan Prakash Party versus Election Commission of India observed and has recently dismissed a petition challenging the use of Electronic Voting Machines in the election process with a cost of Rupees 50,000.
The Court observed while dismissing the petition filed by Madhya Pradesh Jan Prakash Party and stated that it appears that party which may not have got much recognition from the electorate now seeks recognition by filing petitions.
The bench comprising of Justice Sanjay Kishan Kaul and Justice Abhay S Oka observed and has stated in the order that the election process under the representation of the People Act, 1951 is being monitored by a Constitutional Authority like the Election Commission. Thus, in our country, the Electronic Voting Machines (EVM) process has been utilized for decades now but periodically issues are sought to be raised and this is one such endeavour in the abstract.
The Court while observing that the filing of such petitions must be deterred, the bench imposed costs of Rs.50,000 on the petitioner and which was being directed to be deposited with Supreme Court Group-C (Non-Clerical), the Employees Welfare Association within a period of four weeks.
NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.
The National Company Law Appellate Tribunal (NCLAT) in the case Shardha Buildcon Pvt. Ltd v. The Dhar Textile Mills Ltd, the bench comprising of Justice Ashok Bhushan and Justice Mr. Barun Mitra observed and has dismissed the appeal filed by the Resolution Applicant seeking permission to withdraw its resolution plan and held that allowing withdrawal of a resolution plan will be having serious disastrous effect on the whole purpose of the Insolvency & Bankruptcy Code, 2016.
Before the NCLAT, the appellant filled an appeal against the order dated 21.07.2022 passed by NCLT Indore which relying upon the judgment of Supreme Court in the case Ebix v. Educomp dismissed the application filed by the Appellant wherein seeking for the withdrawal of the resolution plan.
The Appellant contended that the judgement of Ebix is not applicable as the same deals with the cases where the Corporate Debtor has undergone changes but in the present case, wherein the Appellant is seeking withdrawal due to the financial difficulty that is being faced by the Appellant.
The argument of the Appellant was rejected by the bench and has held that even if the Appellant is allowed to withdraw from the plan due to financial difficulty and the same will be amounting to go back from the commitment made in the resolution plan which is not permissible.
The bench observed that the IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Thus, permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC.
Accordingly, the NCLAT bench dismissed the appeal filed by the Appellant and has upheld the order of NCLT, Indore.
Supreme Court: Order Of Termination Approved By Industrial Tribunal Is Binding On Parties, Labour Court Can’t Take Contrary View.
he Supreme Court of India in the case Rajasthan State Road Transport Corporation vs Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr observed that the that an order of termination approved by an Industrial Tribunal is binding on the parties and a Labour Court cannot take a contrary view against it.
The bench comprising of Justice MR Shah and Justice Krishna Murari observed and has stated that once the order of termination was approved by the Industrial Tribunal on appreciation of the evidence led before it, thereafter it was stated that the findings recorded by the Industrial Tribunal were binding between the parties and no contrary view could have been taken by the Labour Court contrary to the findings being recorded by the Industrial Tribunal.
However, the court was considering an appeal plea by the Rajasthan State Road Transport Corporation.
The bench observed that a workman was subjected to departmental enquiry for not issuing tickets to 10 passengers after collecting the fare. Thus, on conclusion of the departmental enquiry, his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the Industrial Act. In the said proceedings, it was permitted by the management to lead the evidence and prove the charge/misconduct before the Tribunal. By order, the Tribunal approved the order of termination.
It was observed that after a judgment and an award in 2019, the Labour Court, Jaipur allowed the said reference and set aside the order of termination. An order was passed by the Labour Court while awarding 50% back wages from the date of termination till his death i.e., December 10, 2018. The Award and the judgement passed by the Labour Court was challenged before both, Single and Division Benches of the High Court. However, the petitions were dismissed both the times.
The Court observed after going through the relevant facts of the case that once the order of termination was approved by the Industrial Tribunal, thereafter the fresh reference under Section 10 of the Industrial Disputes Act, wherein challenging the order of termination was not permissible.
Adding to it, the court stated that though it is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the finality has been attained by the Labour Court.
Before the High Court, though the aforesaid fact was pointed out, the court did not consider this aspect and confirmed the judgment and award passed by the Labour Court for setting aside the order of termination, which has been approved by the Industrial Tribunal.
It was held by the Supreme Court that the judgment and award passed by the Labour Court, confirmed by the High Court is unsustainable and allowed the appeal plea.
It has been committed by the High Court that a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.
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