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“Anticipatory bail can’t be restricted to small duration”

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J. Venkatesan in THE HINDU


Nearly 60% of arrests either unnecessary or unjustified

Strike a balance while considering anticipatory bail prayers


New Delhi: Observing that great ignominy attaches to the arrest of a person, the Supreme Court has held that it will not be proper for the trial court or the High Court to grant anticipatory bail for a limited duration and thereafter ask the accused to surrender and seek regular bail.

“Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage and the post-conviction stage. Life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and life itself would not be worth living,” said a Bench of Justices Dalveer Bhandari and K.S. Radhakrishnan, allowing an appeal against an order declining anticipatory bail to a man.

Writing the judgment, Justice Bhandari said: “Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny.” He quoted a Constitution Bench judgment in Sibbia’s case, according to which there should not be any limitation on grant of anticipatory bail.

“However [subsequently], some Benches of smaller strength have erroneously observed that Section 438 Cr.PC should be invoked only in exceptional or rare cases, that means the life of Section 438 Cr.PC would come to an end after that limited duration. This is not the correct view as no such limitation has been envisaged by the legislature,” Justice Bhandari said.

Arbitrary use of power

The Bench pointed out that the Law Commission, in its report, had severely criticised the police for arbitrary use of the power of arrest which, the Commission said, “is the result of the vast discretionary powers conferred upon them. The Commission expressed concern that there is no internal mechanism within the Police department to prevent misuse of law in this manner.”

The Bench said that by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the jail expenditure. Arrest should be the last option and restricted to exceptional cases where it was imperative in the facts and circumstances of a case.

“While considering the prayer for anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to a free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; the court has to consider reasonable apprehension and must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The Bench said: “Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental to their proper existence and no other right can be enjoyed without the presence of the right to life and liberty.”

In the instant case, Siddharam Satlingappa Mhetre was denied anticipatory bail by the Bombay High Court. The Supreme Court allowed his appeal and directed that he be granted anticipatory bail on certain conditions.

http://www.hindu.com/2010/12/06/stories/2010120666421600.htm

2 Responses

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  1. Venkatesh P. Dalwai said, on December 8, 2010 at 18:39

    Anticipatory Bails can not be without limitations of period. Especially when economic offnces and serious crimes are alleged then it becomes uphill task for the Police to get information. Police must be given liberty to seek cancellation if accused fails to cooperate in collecting evidence.

  2. RAJ KUMAR said, on March 12, 2011 at 01:51

    What to do with the court following the rotten decisions five years before which states that the anticipatory bail be given in exceptional cases only. It is only to benefit the cruel police and do not get updated with the latest decisions like this decision.


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