INTRODUCTION
The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?
The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.
The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.
Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.
Judicial Discretion vis-a-vis Section 438 Cr.P.C.
‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.
An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.
The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.
CONCLUSION
The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.
The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.