Personal liberty is the most sacrosanct of all rights. The apprehension that it may be trampled upon by initiation of criminal proceedings and that too motivated is indeed one of the biggest threats to any individual. The principles for safeguarding liberty both pre arrest and post arrest were laid down in Gurbaksh Singh Sibbia in 1980’s. Gurbaksh Singh Sibbia v. State of Punjab held that it is essential that the grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence are capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
Recently the Supreme Court released Arnab from incarceration while upholding the cherished principles of liberty.Arnab, arrested on November 4, 2020 in an abetment to suicide case was denied bail by the Bombay High Court and was asked to pursue the case with the relevant lower court. Supreme Court while granting bail to Arnab unequivocally held that ‘the judiciary should ensure criminal law does not become a weapon for selective harassment’. While dealing with bail, the Supreme Court dealt with various aspects such as power of high courts to grant bail under writ jurisdiction, quashing of FIRs and role of courts in upholding human liberty and held:”The writ of liberty runs through the fabric of the Constitution”.
“The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law.”The landmark judgment holds that the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of his personal liberty in an excess of state power. It is very important that our courts exhibit acute awareness to the need to expand the footprint of liberty and use correct and fair approach as a decision-making yardstick for future cases involving the grant of bail.
The 2005 Amendment added the following grounds to Section 438 CrPC:
Nature and gravity of the accusation- The Court must take into account whether there is accusation of a heinous offence. Such a view is in line with the rulings of the court wherein it was held that “pre-trial incarceration needs justification depending upon nature and term of offence”
Criminal history and past arrests of the applicant showing general law-breaking attitude – More the number of FIRs, ongoing investigations or trials or punishments of the accused,lower will be the chances of enlargement.
Possibility of the applicant fleeing from justice- If there is a legitimate possibility that the applicant could flee or abscond and thereby causing harm to the ongoing investigation, the bail petition may be rejected.
The sole object behind the accusation is humiliating and injuring the applicant.
Judicial precedent has evolved additional grounds (amongst others) for granting bail to person apprehending arrest including far-reaching effects, doubt as to the genuineness of the prosecution, the vagueness of allegations, and now delay has been factored as a ground for consideration of grant of bail. Delay and more so inordinate delay smacks of malafides and should weigh as a major consideration for grant of bail.
In Sumedh Singh Saini v. State of Pubjab & Ors., the Supreme Courtheld that long delay in filing the FIR is a valid consideration for grant of anticipatory bail. The three judge Bench was ruling on the bail plea of former DGP, Sumedh Singh Saini in the 1991 Balwant Singh Multani Murder case.
The Supreme Court held that a case is made out by the appellant for grant of anticipatory bail under Section 438 CrPC. The Court reasoned that such a long time, as 29 years, would certainly prove fatal to the criminal proceedings. However, “considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra)” and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Supreme Court also noted that “Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail”.
The decision of the Supreme Court is well-reasoned in perfect consonance with the balance between the competing interests of protecting the liberty of the accused and the sovereign power of the police to conduct a fair investigation. This marks the way forward for a new era on personal liberty. Personal liberty has to be the torch bearer for our jurisprudence and cannot and should not be compromised at any cost. The Apex Court has indeed paved the way for upholding constitutional values of liberty.
Senior Advocate Pinky Anand has served as the Additional Solicitor General of India
In Sumedh Singh Saini v. State of Pubjab & Ors., the Supreme Court held that long delay in filing the FIR is a valid consideration for grant of anticipatory bail. The three-judge Bench was ruling on the bail plea of former DGP Sumedh Singh Saini in the 1991 Balwant Singh Multani Murder case.