KNOW ALL ABOUT INTERIM/ANTICIPATORY BAIL

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.

– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

Introduction 

The Indian Constitution recognizes life and personal liberty as inalienable rights of all people. “No one shall be deprived of his life or personal liberty except in accordance with a procedure established by law,” says Article 21.

Article 21 of the Constitution is directly linked to the concept of bail. In the case of Gudikanti Narasimhulu Vs Public Prosecutor, High Court of Andhra Pradesh, the Supreme Court held that:

“Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.”

The Supreme Court in the above case has recognized that bail acts as a safeguard to the right to personal liberty enshrined in Article 21 of the Constitution.

Bail

The Code of Criminal Procedure, 1973 (hereinafter as CrPC) contains no definition of the term “bail”. However, judicial interpretation is being used to provide some clarity on the meaning of bail.

According to the Hon’ble Madras High Court in the case of Natturasu Vs State^[2], bail is the process of obtaining the release of an accused charged with a crime by ensuring his future attendance in the Court for trial and requiring him to remain within the Court’s jurisdiction. The provision for bail can be traced all the way back to Magna Carta which states that:

“No free man shall be seized, imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by lawful judgement of his equals or by the law of the land.”

The principle of “presumption of innocence until proven guilty,” which is a fundamental principle underlying criminal law and is enshrined in Article 11(1) of the Universal Declaration of Human Rights, has a direct correlation with the grant of bail.

The Indian Judiciary in various cases^[3] has frequently recognized the aforementioned principle as one of the three cardinal principles of criminal jurisprudence. Without a doubt, the aforementioned principle has become one of the most important determining factors in granting bail to an accused person.

To understand the concept of interim bail in a more detailed manner we need to understand the concept of Bail in Indian Law.

Types of bail

Anticipatory bail (Section 438 CrPC): The post-emergency year witnessed a spate of petitions for anticipatory bail. The petitioners were in many cases influential persons who had wielded enormous powers during emergencies and who were, in the post emergency era, apprehensive of arrests on the charges of corruption, misuse or abuse of official positions, etc. The persons involved in the anticipatory bail proceedings being rich and mighty made every effort to use the law and its machinery to their maximum advantage. In this process, the courts were required to interpret the law discreetly and with great precision and circumspection. The law relating to anticipatory bail has received, thereby, impetus in the process of its growth and sophistication.

The right to life and personal liberty is an important right granted to all citizens under Article 21 of the Indian Constitution and it is considered one of the precious rights. Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973.

 The Law Commission of India, in its 41st Report dated September 24, 1969, pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. The very basic purpose of insertion of this provision was that no person should be confined in any way until and unless held guilty.

Mandatory bail:

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him.

Interim bail

Before the hearing for the grant of regular or anticipatory bail, a short-term bail is given to the accused. Such short-term bail is called ‘interim bail’. In Prahalad Singh Bhati vs. NCT, Delhi (2001), the deceased, the accused’s wife, is said to have been abused as a consequence of the demand for dowry. On 18.3.1999, the accused is said to have taken the deceased to his parent’s home where, in front of his parents, he poured kerosene on her and set her afire. According to Section 438 of the CrPC, the accused petitioned for the grant of anticipatory bail. The investigative agency did not make a genuine effort to resist the bail application, thus the Sessions Judge granted interim bail. However, the Sessions Judge noted that the State shall be free to arrest the accused if a case under Section 302 of Indian Penal Code (1860) is made out on the facts while rejecting a motion for cancellation of the anticipatory bail.

Default bail

It is commonly referred to as default bail, compulsive bail, or statutory bail. This right to bail is granted when the police or investigating agency fails to submit a full charge sheet, challan, or police report within a specified period of time. This right to bail is given regardless of the case’s merits because it results from the investigating agency’s failure to complete the investigation within the specified period of time. In M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence (2020), the Supreme Court held that the applicant will not be eligible for default bail if the accused fails to submit the application and the police file the charge sheet in the meantime. 

This type of bail is nothing like an anticipatory bail as this is granted when the application is pending for bail. Interim bail can only help accused persons who might be framed for the crime they are accused of and thus, want to get out of the jail or on bail as soon as possible.

Interim bail does not have a specific section but conditions that are specified apply in this case as well.

Case laws

• In the case of Sukhwant Singh & Ors Vs State of Punjab that Interim bail is a tool/measure used to protect an accused’s reputation. The Supreme Court of India has also stated that:

“In the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application.”

• In Lal Kamlendra Pratap Singh Vs State of U.P. and Ors., the Hon’ble Supreme Court stated in discussing the scope of interim bail that he importance of interim bail cannot be overstated. Courts in India have consistently recognised that interim bail protects a person’s reputation until the main application of bail is adjudicated, which can be tarnished by the mere event of arrest and stigma associated with it, by stating that:

“In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation….”

• Similarly, in cases where an anticipatory bail application was pending, the Hon’ble High Court of Delhi in the case of Parminder Singh and Ors. v. The State stated:

“where there is no likelihood of the accused fleeing from justice, or tampering with the evidence, or a clear case for custodial interrogation is not made out and the application for grant of anticipatory bail cannot be heard at an early date, then the interim protection should normally be provided to such accused persons. Otherwise, the very object and purpose for grant of anticipatory bail would get defeated.”

• It is well established that the Court’s discretion governs whether or not bail is granted. However, such discretion must be “judicial,” meaning that it must be based on sound legal principles. This was held in the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. when the Supreme Court stated that “It must be governed by rules rather than humour; it must not be arbitrary, vague, or fanciful, but rather legal and consistent.” For the simple reason that the merits and severity of the case may not be fully appreciated by the Courts at the time of determining a prayer/request for interim bail, such judicious exercise is even more important.
• Because such power is often exercised during the interregnum and based on limited facts and circumstances brought to the Court’s attention, it is not uncommon for unscrupulous litigants/accused to abuse it. There are numerous examples of such misuse and abuse, ranging from violation and disregard of bail conditions to extreme elopement from the legal process. The Hon’ble Supreme Court recognised one such instance of interim bail abuse in Rukmani Mahato v. State of Jharkhand. In the case, the Hon’ble Apex Court condemned the practise of subordinate courts granting regular bail based on the superior court’s interim/pre-arrest bail. The Supreme Court ruled:

“…even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court meaningless.”

• Another example would be where an accused, after being arrested, is able to obtain interim bail for a limited period of time through his attorney. However, while attempting to avoid arrest, the accused blatantly disregards the bail conditions and even fails to appear in court after the duration of the bail has expired. Such instances are nothing more than a violation of the court’s process, and they must be dealt with harshly. The Hon’ble High Court of Rajasthan in the case of Phool Chand Vs State of Rajasthan, in dealing with a similar case of judicial abuse, held that in such a case, an evading accused cannot seek recourse to the inherent jurisdiction of the High Court(s) under Section 482 CrPC, nor can the remedy under Section 438 CrPC be used.
• At the same time, according to the Hon’ble Supreme Court, even the power under Section 439 CrPC cannot help an erring accused unless he or she surrenders and is taken into custody. The Hon’ble High Court held, relying on the Supreme Court’s decisions in Niranjan Singh Vs Prabhakar Rajaram Kharota and Gurbaksh Singh Vs State of Punjab, that:

“…They cannot be granted bail under section 439 Cr. P.C. unless, as explained above, they surrender before the Court and submit to its directions. They cannot invoke the aid of section 438 Cr. P.C. either, because, as already stated, they were arrested by the police……The law is well settled, that anticipatory bail can be granted so long only as the applicant has not been arrested.”

• In addition, instances of dishonest accused attempting to abuse/misuse the inherent power of the High Courts by invoking the provisions of Section 482 CrPC to seek interim bail/ protection are not uncommon. In this regard, the Hon’ble Apex Court has repeatedly stated in cases such as State of Punjab Vs Davinder Pal Singh Bhullar and Simrikhia Vs Dolley Mukherjee , that the power of the High Court(s) under Section 482 CrPC cannot be used where there are specific provisions under law for the redressal of the aggrieved party’s grievance or where alternative remedy is available.
• In Savitri Goenka Vs Kusum Lata Damani, the Hon’ble Court strongly condemned the practise of converting Section 482 CrPC applications to Sections 438 and 439 CrPC applications. In fact, the Hon’ble Supreme Court has consistently held that when it comes to criminal prosecutions, arrests, investigations, and other matters, the High Courts should exercise their power under Section 482 CrPC with caution.

Characteristics of interim bail

Subject matter	Feature
Time	It is given for a short time.
Application	When an application for anticipatory bail or regular bail is pending in court, it is granted.
Arrest	Without a warrant, the accused will be taken into custody when the bail term has expired.
Cancellation	No special procedure is required to cancel an interim bail.

Bases for granting interim bail

The Hon’ble Delhi High Court stated in Parminder Singh and Ors. v. The State of Punjab, (2001), that interim bail should be permitted in the following cases:

• When there is no chance that the accused will escape prosecution,
• When there is no chance that the defendant may tamper with the evidence
• When there is no justifiable reason to conduct a confined interrogation, and
• When the hearing on the anticipatory bail claim must be postponed.

Conclusion

The idea of the accused being naive until proven guilty is emphasize through bail, that plays a significant part in the Indian permissible system. One of the most essential fundamental rights that each individual has is the right to freedom and dignity. These rights again apply to those the one are charged. These rights may not be denied to one. Thus, the granting of bond preserves the blamed’s fundamental rights. The idea of interim bond is crucial cause an accused woman may be in danger of being detained even before the effect of the hearing on welcome bail is famous. Interim bail is then granted when the court is sure that doing so will counter the accused from being unfairly imprisoned or arrested. In general, the magistrate or court endure use the ability to grant interim warrant whenever it is factual. Such an exercise of authority will successfully divert abuse of the criminal justice order for purposes unrelated to allure purpose.