Gujarat, Anticipatory Bail, and Police Custody: A Peculiar Practice

Almost a year ago now, on 07.08.2024 the Supreme Court delivered its judgment in a contempt petition titled Tusharbhai Shah v. Kamal Dayani [2024 INSC 588 ("Tusharbhai")]. The only reason to cover the judgment is because it offered a window into a highly peculiar practice, and in turn offered a timely lesson about the sheer degree of variety in how criminal law works across India. A lesson which, sadly, falls on deaf ears more often than not.  

After giving a brief about why Tusharbhai Rajnikantbhai Shah went to the Supreme Court, the post takes a brief detour to give a quick explainer about how anticipatory bail works in India, since that is the heart of the case. I then go into the peculiar practice of enforcing anticipatory bail in Gujarat which the Supreme Court was confronted by in Tusharbhai — a practice which the Court has declared was contrary to law. I did not find any other jurisdiction as having imported this condition of permitting remand while dealing with anticipatory bail. It would be interesting to examine whether having this condition made courts in Gujarat more hesitant in granting anticipatory bail or made them more liberal.  

The Facts in Tusharbhai 

A commercial dispute about the sale of property led to registration of a criminal case against Tusharbhai Rajnikantbhai Shah. He sought anticipatory bail fearing his arrest but his plea was rejected by both the Sessions Court and the High Court of Gujarat. This led to his first petition before the Supreme Court, and he finally got some reprieve as the Court gave him interim protection of being released on anticipatory bail if arrested till his petition was finally decided, so long as he cooperated with the investigation.

Shah went to the police to offer his cooperation. He was formally arrested and released on bail in line with the Supreme Court's orders, and directed to come again. On his second visit to the police station, he was given a notice to appear before the concerned local court on 13.12.2023 "for the matter of remand". On this day, police filed an application before the court asking to take Tusharbhai Shah into police custody for seven days. The magistrate was seemingly shown the Supreme Court's order granting Shah his temporary reprieve. It would seem that the magistrate did not think this reprieve came in the way of granting custody of Shah to the police, and directed him to be sent to police custody for three days. Shah was confined in police custody and, according to him, was tortured. When the three days ended, he was brought before the court, and now was granted regular bail by the court. Shah filed a detailed complaint later on about the ill-treatment he faced in custody which the court did not entertain.

All this took place in the shadow of the Supreme Court petition that Shah filed, which was still pending. With good reason, he perceived the acts of the police and the judge to be in contempt of the Supreme Court's orders. Shah now filed his second petition before the Supreme Court, for contempt. What interests me here is not the allegations about police torture and how that was first handled by the trial court and later the Supreme Court in the contempt, but the police having asked for his custody in spite of granting him anticipatory bail and the magistrate not only being fine with the request but granting it. To understand  these aspects, we need to deal a little bit with anticipatory bail. Readers familiar with the concept can skip the next part.

The Mechanics of Anticipatory Bail 

The blog has covered anticipatory bail on many an occasion and a brief recap would do. Normally, 'bail' as a concept refers to being released from actual custody. 'Anticipatory Bail' by contrast refers to a remedy in which a person can apply for bail in anticipation of being arrested and taken into custody. A person must demonstrate a reasonable apprehension of arrest in a case where she does not have a right to bail (termed a 'non-bailable' offence), and show that permitting the arrest and custody will be unjust. If a court agrees, it can pass a directive to police that, in the event of arresting the person, he must be released on bail. 

Any bail, whether regular bail which is sought after arrest, or a direction for anticipatory bail sought prior to arrest, means a release from custody that continues till a court permits the re-taking of a person into the custody of law by cancelling bail (or a superior court finding that the bail order was perverse). Normally, bail is granted on the promise of fulfilling various conditions, the most important of which is continued participation with the legal process. If an accused fails to do so, or meet any other condition, then bail can be cancelled. But without this cancellation, you can't send the accused into custody even while you are on bail. These concepts do not overlap.       

Explaining the Gujarat Model of Anticipatory Bail 

Well, it would seem they did overlap in Gujarat, which is why the police had no qualms in seeking police custody of Tusharbhai Shah, and the magistrate no qualms in granting it, even though he had been granted bail and no cancellation of his bail was sought. In the hearing before the Supreme Court, lawyers for many of the contemnors confirmed this: In Gujarat, they said, it was a "long prevailing practice" for courts to grant anticipatory bail with an express stipulation that at any point of time the police can make a request for custody of an accused where felt necessary for an investigation. They cited a 2014 decision of that High Court in support of their claim. In this case as well, police claimed non-cooperation by Tusharbhai Shah, and the magistrate upon reviewing the record agreed and decided it was a fit case for custody.

The explanation did not cut it for the Supreme Court as a justification for the conduct of the police officer and the magistrate in question in the facts and circumstances of this case because the Supreme Court's order never had any such stipulation permitting custody in the first place. It also specifically held that this "long prevailing practice" of Gujarat was contrary to law and condemned it. But in doing so, the Court did not go into the practice much, which is precisely what piqued my curiosity when I read about it.

Was this claim of a long standing practice true? Absolutely. And it has a fascinating history that goes much further back than 2014. The practice appears to have been birthed in the first few years of anticipatory bail. At this juncture court were, to put it mildly, extremely reticent about this concept and worried deeply about its negative impact on a successful police probe. The broad ambit of the provision invited courts to invent guidelines to prevent misuse, and one saw different High Courts come up with ideas for controlling arbitrary judicial discretion. The Gujarat High Court made such an attempt in Somabhai Patel (1976) where the Court laid down 12 guidelines for courts to exercise anticipatory bail. One of these guidelines was that:

The power cannot be allowed to be invoked in order to defeat, thwart, stall, or render impotent, the provisions relating to remand to police custody for the purposes of facilitating investigation. It may, therefore, be specified in the order that the accused is to be released on anticipatory bail provided he is not required to be remanded to police custody and that if he is so required the police officer would be at liberty to obtain suitable orders from the Court in that behalf either before the arrest or within a reasonable time of the arrest. [Emphasis supplied]

Now, a trend of High Courts placing restrictive covenants upon exercise of judicial discretion for grant of anticipatory bail was stopped in its tracks by the Supreme Court in Gurbaksh Sibbia (1980). But as I have argued earlier, the inherent tension between liberal grant of anticipatory bail and its negative impact on the police investigation was never quite resolved. So it would seem that at least this guideline of Somabhai Patel continued to be followed. I came across one such order in Pankaj D. Suthar v. State (1991) where the High Court granted anticipatory bail in an atrocities act case on a condition that the accused report to the police to cooperate with the probe and "thereafter also for the purposes of being taken on remand in the event of necessities so felt by the Investigating Officer, which the learned magistrate shall decided the same on merits without being influenced by the fact that the petitioner is ordered to be released on an anticipatory bail by this Court on usual terms and conditions." (Interesting aside: Justice J.B. Pardiwala appears to have been the counsel appearing for the petitioner).

In the 2000s, this condition was fully part of the system, so much so that you can find lawyer's suggesting it as a means to convince a court to grant anticipatory bail in an otherwise unfavourable case. For instance, the counsel for the petitioner in Yazdi Icchaporia (2003) the lawyer suggested that stringent conditions may be imposed while granting bail including "specific condition giving liberty to the prosecution to move remand application in the event of grant of anticipatory bail" (the petition failed regardless). The same submission, with the same result, was made in Jitendra Rajgor (2004). An example of just how entrenched a view it was that custodial remand was permissible for persons on anticipatory bail can be seen in Pragnesh H. Parikh (2007) where when the magistrate denied a remand request for an accused who was on anticipatory bail, the sessions judge set aside this observation in a revision petition stating there was no such bar on seeking custody. Where anticipatory bail was being granted, especially in financial crimes, the bail order would carry a standard stipulation at the end — "it would be open to the investigating officer to file an application for remand if he considers it proper and just"

The first ripples in this otherwise placid pond of the Gujarat Model of anticipatory bail were seen after the Supreme Court's decision in Mhetre (2010). This judgment emphasised that there was no difference in the effect of an order for bail and anticipatory bail, and also deprecated a practice of passing anticipatory bail orders of a limited duration of time. As one can see, treating anticipatory bail and bail as different was the crux of how Gujarat was enforcing anticipatory bail. This was the logical justification for conditions where the life of anticipatory bail orders was restricted, and the remand condition imposed. 

A petitioner naturally challenged such conditions soon thereafter, and in Jashuben (2011) the Court had to decide the issue. It held that a limited time period for an anticipatory bail was clearly contrary to how the Supreme Court had explained the law, and the condition could not continue. But for the other condition about remand, the Court upheld the condition and gave insight into why the approach had come to be so popular:

Uptil now, under the order of anticipatory bail, an accused would be, immediately, upon his arrest, released on bail. For the purpose of seeking remand, during such a period, he would be treated as if in custody, but, under the protective umbrella of the Court, under an order of anticipatory bail. Right of the prosecution to seek remand of an accused, who has been granted anticipatory bail, deletion of the said condition, without any substitution would create serious complication. In a given case, when the prosecution is desirous of seeking police remand, question would arise whether the anticipatory bail order should be granted and if it is required to be granted on merits, what would be the position of the remand application, which the prosecution may file, later on. Obviously, if an order of anticipatory bail is granted, the accused immediately upon his arrest shall have to be released on bail. As long as he remains on bail, the prosecution cannot seek his remand. The prosecution, therefore, shall have to seek cancellation of the bail, before it can apply for remand. This situation would create two complications. Firstly, parameters for cancellation of bail are entirely different from those, for granting or refusing bail. Secondly, any such application by the police seeking cancellation of bail, may consume considerable time during which period the evidence may be destroyed or lost. [Emphasis supplied]

The High Court lays bare for us the tension between too wide an ambit for anticipatory bail and successful police investigations, which continue to remain hinged upon securing custodial interrogations as the ideal form of cooperation. Legitimising a cumbersome process — of seeking cancellation — before police can go seek remand would tilt the system too far in favour of the accused. Permitting police to seek remand struck a balance because it effectively required a judge to decide the question, safeguarding liberty against the threat of immediate arrest. 

Another challenge to this long prevailing practice came in 2014. This time, the Single Judge referred the issue to a Division Bench, as he did not agree with the conclusions in Jashuben. It would appear that this Division Bench did not explicitly overrule the practice either, which continued to flourish till 2024.

Conclusion: A Complicated Set of Lessons from History

The Supreme Court has now declared a practice of permitting police remands for persons who are granted anticipatory bail as being contrary to law. From past experience, it is fair to expect some time before this decades-long practice is finally uprooted, and the message from on high to trickle down to the remotest districts in Gujarat. 

In declaring the practice as contrary to law, the Supreme Court emphasised the idea of personal liberty and held that allowing the police to seek remands in this fashion rendered anticipatory bail nugatory. But as we saw with a deeper scrutiny of the Gujarat approach, the condition imposed was not to render anticipatory bail nugatory but strike a balance between liberty and effective investigations, which remains the heart of anticipatory bail jurisprudence since the topic entered the lexicon. If anything, we saw that lawyers were actively batting in favour of this condition as a means to get anticipatory bail in otherwise difficult cases. 

One wonders whether the outright removal of this condition will make courts in Gujarat more reticent in giving anticipatory bail in those cases where, previously, this condition may have convinced them that the grant of relief will not hamper an effective investigation. I suspect that it may well prove to make courts a bit more hesitant, initially at least, and end up with a situation where the Supreme Court's avowedly pro liberty intervention ends up actively having a negative impact for personal libery. The entire episode is a reminder that the lessons from history are not as simple as we might think.

The Supreme Court and Anticipatory Bail — A Troubled Courtship

This post is not prompted by a recent case or statutory development, but instead the desire to take a step back and look at "bigger picture" concerns in an area of law, navigating which is akin to fortune-telling on the best of days and charting a hidden minefield on most others. This is Anticipatory Bail, that great and peculiar legal tool that lawyers in South Asia are familiar with [yes, it is not only India which has this remedy folks]. For the uninitiated, Anticipatory Bail is a legal remedy which enables a person to approach a court asking for bail "in the event of an arrest". In India, this is statutorily provided under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], and requires that an accused show reasons to believe that she is likely to be arrested on accusation of having committed a non-bailable offence. If a court is satisfied in respect of the same, then it can pass an order directing the police to release the individual on bail in the event that it decides to arrest her, where this Anticipatory Bail will come with certain conditions such as ensuring cooperation with investigation and not coercing witnesses, etc. 

The Issue

The primary cause for confusion in respect of the legal position on Anticipatory Bail is, as one would expect, the manifold judicial decisions which have expounded on its scope and ambit. After all, merely reading the text of the provision might lead one to think that Anticipatory Bail is there for the asking if a person can show reasons to believe she will be arrested for accusations of committing a non-bailable offence. This is hardly so, as a court "may" grant the relief, and this question of determining the proper exercise of judicial discretion which has been the subject of controversy in all these decisions. The point being made here is not simply to complain about this confusion or berate courts for it. Instead, what I want to focus upon is a choice that the Supreme Court of India made in 1980 in respect of the judicial discretion afforded in matters of Anticipatory Bail in India, when a Constitution Bench of that Court considered the then-recently-added provision in a batch of petitions which was reported as Gurbaksh Singh Sibbia v. State of Punjab & Ors. [AIR 1980 SC 1632 ("Sibbia")]. 

This was a choice to remain faithful to the perceived framers' intent behind adding Anticipatory Bail, or to go beyond these confines by adopting a more purposive interpretive bent. The Constitution Bench opted for the latter, and the consequences have been bittersweet. On the one hand, Anticipatory Bail became an option to secure personal liberty more generally and it also added teeth to the fundamental right secured under Article 21 of the Constitution. On the other hand, this approach militated against what one might imagine as the DNA of the criminal process by denying arrest and thus allowing police investigations and / or the public interest to be "frustrated" as a result. Which is why, in spite of it being backed by a Constitution Bench decision of the Supreme Court, the liberal approach to Anticipatory Bail continues to raise many eyebrows and often meets with disapproval from that very Court till date.

The Interpretive Question in Anticipatory Bail

The framers approach, I argue, was to keep Anticipatory Bail as a remedy against baseless accusations — as a defence against being arrested in a malicious prosecution. This was the context in which such orders had been sought for before various High Courts in the two decades prior to the Cr.P.C. 1973, albeit with limited success. It was this context which led to the question being presented before the Commission. 

However, the 41st Law Commission Report (1969) sponsoring insertion of a provision for Anticipatory Bail did not stipulate this malicious prosecution context as the only purpose for which such a relief of an Anticipatory Bail order may be needed. The Commission noted in Para 39.9 that:   

 

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. ... The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. [Emphasis mine]

Anticipatory Bail was therefore not only as a relief against malicious prosecution but also as a potential remedy against unjust incarceration caused because of the slow pace at which the legal system worked as people who otherwise be released on bail would have to "remain in prison for some days" and then apply for bail. It would be a stretch to consider this as a general expansion as "some days" come in almost every case. The only sensible way would be to treat this suggestion as offering a remedy in the exceptional case, and not more; doing so would render the distinctions between bail and Anticipatory Bail redundant which was certainly not what the Law Commission wanted to do. This view of treating Anticipatory Bail as the exceptional remedy is only buttressed if one considers the 48th Report which followed the introduction of the Criminal Procedure Code Bill of 1970 — the basis of the Cr.P.C. 1973 — wherein at Para 31 the Law Commission did retain its support for the measure but suggested it be an option only in "very exceptional cases".       

When, in 1976, the Supreme Court took up the limited issue of the exclusion of Anticipatory Bail in the statutory context of the the Defence of India Act 1971 in Balchand Jain [AIR 1977 SC 366], the separate opinions of Justices Bhagwati and Fazal Ali echoed this view of Anticipatory Bail being fit only for the exceptional case. The Punjab & Haryana High Court followed this view in its decision dismissing the petitions filed by Gurbaksh Singh Sibbia and others [1978 Cri LJ 20]. In a bid to settle the confusion that it had seen arise, in some measure due to the Law Commission's views and also due to the charged political context into which Anticipatory Bail was inserted, the High Court went ahead and offered strict guidelines regulating the scope of judicial discretion on the point of Anticipatory Bail. One of the guidelines was to permit Anticipatory Bail as an option only where an issue of mala fides was being alleged in respect of the accusations levelled against the individual seeking relief. The High Court considered limiting the scope of discretion as advisable also because it seriously bought into the argument that an expansive approach to Anticipatory Bail would stymie investigations. It agreed with the government counsel that speed was of the essence in investigations where the initial period of police custody was often critical to solving the case. Liberal pre-arrest bails would thwart investigations and hurt the public interest.    

The strict guidelines authored by the Punjab & Haryana High Court seemed to extinguish the remedy of Anticipatory Bail altogether and met with stern disapproval from the Supreme Court in Sibbia, observing that it did not see "why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care imaginable." The worries about thwarting investigations by depriving police of custody during the initial period were played down by the Supreme Court which was of the view that all investigative needs could be met with placing conditions requiring that a person cooperate with police. There was little discussion about the value of custodial interrogation to an investigation. Rather than see value in police custody, it is fair to say that in this post-Emergency, post-ADM Jabalpur, Maneka Gandhi era of the Supreme Court what weighed more heavily with the Bench was the threat posed by arbitrary arrests to personal liberty. One could see the stark difference in approach when, rather than talk about the importance of custodial interrogation, the Supreme Court spoke about a need to respect the presumption of innocence of the person applying for Anticipatory Bail. As a result, the only acceptable approach was an expansive one and not one which insisted on mala fides to be established for granting Anticipatory Bail. The Court acknowledged that there could be problems caused to investigations by Anticipatory Bail, but it noted that "a wise exercise of judicial power invariably takes care of the evil consequences which are likely to flow out of its intemperate use."   

The Fallout: Between a Rock and a Hard Place

In 2020, Sibbia was endorsed as being the correct and authoritative position of law on Anticipatory Bail by another Constitution Bench of the Court in Sushila Agarwal [2020 SCC OnLine SC 98] where, if anything, the Supreme Court went even further than Sibbia in endorsing an expansive and liberal approach to Anticipatory Bail. However, the journey from 1980 to 2020 is miles away from being imagined as a linear progression in the legal position affirming greater protection for personal liberty. Beneath these lofty pronouncements of the Supreme Court about Anticipatory Bail lies a great degree of reservation around this remedy. Just as an example, how can one square the law as laid down in Sibbia with the judgment in P. Chidambaram v. Enforcement Directorate [2019 SCC OnLine SC 1143] rendered by the Supreme Court in September, 2019, denying Anticipatory Bail to the petitioner. 

Yes, arrests can be unnecessary and arbitrary, but at the same time they are critical to ensure the criminal process "works" in the eyes of stakeholders. Arrests and the police custody which may follow within the first fourteen days thereafter are still accepted as being the most important part of any investigation. This is a feature of the system which the Supreme Court itself recognises time and again [see, as an example, CBI v. Anil Sharma, (1997) 7 SCC 187], and in doing so goes against the logic of Sibbia that the interests of an investigation can be sufficiently secured even without police custody. In addition to this, the criminal process endorses a logic that pre-trial arrests and custody, for at least some duration, are justified in cases of serious crime. Bail has never been only about ensuring that a person faces trial, but its desirability has historically been linked to the gravity of accusations. This bent of mind has, naturally, accompanied the exercise of judicial discretion on the point of Anticipatory Bail. A good example of this is the 2019 judgment in P. Chidambaram which reflects the consistent hesitation of courts to allow Anticipatory Bail for economic fraud. If anything, the reservations in granting Anticipatory Bail in serious crime appear to be even more pronounced than those associated with the grant of regular bail in this regard, as is evident from the complete exclusion of Anticipatory Bail as a remedy in certain statutory contexts — for example, anti-terrorism laws.   

Conclusion

In expanding the idea of Anticipatory Bail back in 1980, the intention of the Supreme Court in Sibbia was to make sure that this new tool is not jettisoned due to perceived fears of certain sections. However, the manner in which the Court sought to realise this was to leave everything to judicial discretion. The result is a branch of law that is pockmarked by inconsistency and uncertainty, which are perhaps the two worst things that an accused or potential accused person has to contend with. Anticipatory Bail became exactly like the concept of bail in respect of non-bailable offences — a concession, not a right.

It would be surprising to see Anticipatory Bail being scaled back to a pre-Sibbia position as a remedy only in cases of malicious prosecutions, even though this might be the most desirable way to make sense of the legal position. This perspective still continues to inform the law, in my opinion, and in practice it might still be the most common category of cases in which Anticipatory Bail is granted. It could well be argued that this perspective neatly explains why courts remain hesitant to accept Anticipatory Bail in contexts where the accusation comes not from private parties, but from government officials who are presumed to do their job correctly. However, the recognition of other residual categories of deserving cases for the grant of Anticipatory Bail is seen as too important to give up, and Sushila Aggarwal underscored that the Court still sees Anticipatory Bail as being a potential tool to help reduce arbitrary arrest and detention. Of course, just not a very good tool. As a result, it is fair to imagine Anticipatory Bail continuing to seem like going to play slots in a casino and hoping to get lucky till the system somehow moves past its preference for arrests and pre-trial custody of accused persons.       

Guest Post - Restricting Anticipatory Bail under the Atrocities Act

(This is a guest post by Saranya Ravindran)

Section 438 of the Code of Criminal Procedure [CrPC] empowers the Sessions Court and the High Court to grant anticipatory bail, i.e., the direction to release a person on bail in the event of an arrest on a non-bailable offence. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) exempts the operation of Section 438 of the Criminal Procedure Code [CrPC], not allowing an accused to apply for anticipatory bail. 

Anticipatory bail was originally intended to serve as a remedy for baseless accusations and malicious prosecution. However, over time, through subsequent Law Commission Reports and Supreme Court’s expansive interpretation, anticipatory bail was granted wider scope. In addition to patently false accusations, anticipatory bail was also upheld as a remedy where the court was satisfied that conditions on bail, such as cooperation with police, would suffice to conduct investigations. Such an expansion heavily relied on the need to deter arbitrary arrests by Police in the post Emergency era without considering the importance of custodial interrogation for investigations. Subsequent judgements by the Court in Sushila Agarwal have endorsed such an expansive view of anticipatory bail.

It is in this context of a liberal interpretation of anticipatory bail that in 2018, the Supreme Court, in Mahajan (2018, SC) diluted the restriction of anticipatory bail in cases involving the Atrocities Act. Rather than an unconditional denial of anticipatory bail as per Section 18, there were now three circumstances under which anticipatory bail could be granted under the Act—"(i) if no prima facie case is made out, (ii) it is a case of patent false implication, or (iii) if the allegation is motivated for extraneous reasons”. While the first two restrictions arguably are a call back to the original intent with which anticipatory bail was incorporated in the first place, the third restriction of allegations motivated for extraneous reasons has led to ambiguities on what exactly constitutes a case of “patent false implication”. 

Following this, Parliament enacted the amendment of 2018, with an explicit provision that the amendment overrode the directions of Mahajan, reinstating that an accused under the Act cannot apply for anticipatory bail. The Supreme Court again heard a challenge to this provision in Prathvi Raj Chauhan v. Union of India (2020, SC), upholding the validity of the Act with a caveat that if a "complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A(i) shall not apply". The bar set out in this judgement becomes evident in the concurrent opinion of Bhat J. that anticipatory bail only extends to the rarest case, where no prima facie offence is shown in the FIR. In his words, such stringent terms "otherwise contrary to the philosophy of bail, [are] absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."

Thus, what Section 18 entails to do is not a blanket denial of anticipatory bail but limits the broad usage of anticipatory bail that has now become the norm among courts. Giving wide discretion to a grant of anticipatory bail, the Supreme Court in Sibbia (1980, SC), held that the concerned Courts ought “to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts”. Section 18 departs from this judgement, instead restricting the use of anticipatory bail to just mala-fide accusations or exceptional cases. Thus, in some ways, Section 18 merely goes back to the framer’s intent when seeking anticipatory bail, i.e., protection against accusations with no teeth and does not allow for the expansive application of anticipatory bail that the Supreme Court has interpreted over the years.

The importance of custodial interrogation and arrests to investigate offences cannot be understated in any crime, caste based or otherwise. But specifically, in cases under the Atrocities Act where the power imbalances between the SC/ST victim and an upper caste accused, its importance is even more stark. Cases under the Atrocities Act routinely reflect victim intimidation, threats to key witnesses and petitioners, etc. It is already recognised that if there is a reasonable apprehension that an accused is likely to tamper with evidence or threaten witnesses, then anticipatory bail ought not to be granted. Given the nature of caste-based crimes is one rife with power imbalances, a stricter line against anticipatory bail is justified under the Atrocities Act, even assuming it is not otherwise.

Application of Section 18

Despite a strict test being evolved for the grant of anticipatory bail under the Atrocities Act, the Delhi High Court granted bail in 80% of cases. In Naresh Tyagi v. State of NCT of Delhi (2020, DHC), anticipatory bail was granted despite CCTV footage establishing an offence. In Vasant v. State of Mahrastra, anticipatory bail was granted by the Supreme Court despite prima facie case being established. Rather than using the principles of granting anticipatory bail from Prathvi Raj Chauhan that restricted the grant of bail, courts grant bail borrowing lines of rationale from Mahajan, even if they do not cite it. There are two grounds under which anticipatory bail is most commonly granted—prima facie  case being set out and false accusations.

Prima Facie Establishment of Case

While it is evident that anticipatory bail under the Atrocities Act can only be granted in exceptional cases where no offence has been made out in the FIR, courts consistently dive deeper into whether the offence as alleged meets the standards set out by the Act. In fact, Danish Khan v. State (Govt. of NCT of Delhi)  (2021, DHC) explicitly says that "grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case…" which, in reality, it is not. A consideration of whether the ingredients of the offence are met in their entirety is a matter of trial. When considering the prima facie establishment of case depends merely on whether there is a reasonable belief based on the FIR of the presence of a cognizable offence. That has been the bar set by the Supreme Court. However, every decision of the High Courts in such cases analyzes the technical burdens that the prosecution has to satisfy under the Act to convict the accused, namely the two ingredients needed to establish a case under Section 3(1)(r)—"(i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within 'public view'" [Sanjay Singh, 2021 DHC] Both of these are not just improper considerations for determining anticipatory bail as explained above, they also impose a high burden for judging whether a cognizable offence occurred. 

A. Intentional Insult

The Supreme Court, has time and again, across cases like Dinesh Buddha (2006, SC) and Khuman Singh (2019, SC) held that evidence should show that the "offence was committed by the appellant only because the deceased belonged to a Scheduled Caste". This standard been used by courts across decisions such as Naresh Tyagi and Danish Khan. But proving that the exclusive reason for an offence was caste-based motivation is a high bar—the vast majority of crimes might not be exclusively motivated by casteist reasons, or even when they are, proving that a sexual assault is motivated by casteist motivations since casteist biases are subconscious, normalized, behavioural traits in everyday lives of upper castes and clear material evidence, either orally or otherwise to that effect is harder to gather.

The amendment to the Act under Section 8(c) tries to ease this burden by presuming that an accused knew of the victim's caste only when they had prior knowledge of the family, this is rarely applied by the Delhi High Court. But more substantially, the surname or place of residence in a village are easy identifiers of caste and, therefore, even if it cannot be proven that a person specifically knew of one’s caste, it is likely the accused did. 

B. Public view

A precedent for defining public view is Sanjay Singh, which interprets this phrase as the "public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present". Danish Khan, Binay Kumar Chauhan v. State (NCT of Delhi) (2020, DHC) and Suraj Malhotra v. State (2020, DHC) all subscribe to this understanding of "public view". And even this restrictive provision on when an offence can said to be constituted is subject to further constraints—relatives or friends of the accused hearing casteist abuses are exempt from the definition of "public view”. With witness intimidation and a host of private offences which is where caste abuses most often thrive, this bar is again a high burden victim often struggle to meet. 

False Accusation

The second most commonly used defence during anticipatory bail proceedings is the claim of the victim alleging false accusations. Especially given that the vast majority of cases under the Atrocities Act have underlying tensions such as land disputes or property rights issues (round 75% of bail hearings under the Act across High Courts in Delhi, Telangana and the Supreme Court involve a land dispute), an allegation of “false allegation” motivated by “extraneous reasons” to borrow from Mahajan, are consistently raised. It is undoubtedly important to grant anticipatory bail in cases where it is evident that the case filed involves baseless allegations. However, it is equally important to note the difference between a case filed due to a land issues, that leads to a verbal abuse on caste lines and a case filed against the accused due to hostilities emerging from a property dispute. The mere existence of an extraneous reason that leads to the offence alleged, cannot lead to an immediate grant of anticipatory bail if the extraneous reason mentioned, is the cause of, or is likely to be the cause of the alleged offence. 

Thus, both the detailed inquiry into the ingredients of the offence and the high bar set out to satisfy each given the judicial approach, results in an increasing grant of anticipatory bail in contrast to what the intent of Section 18 originally was. 

Conclusion

Most recently, the Chhattisgarh High Court observed that when the offence alleged under the SC/ST Act appears to be “a misuse of law”, the court can grant anticipatory bail. But as explained, what exactly constitutes a “misuse of law”, and what are the considerations courts must undertake to grant anticipatory bail is an area that needs clarification. In its absence, investigations continue to be hampered with the inability to arrest the accused for serious offences, the burden of which ultimately falls on victims who are meant to be protected by the Atrocities Act. 

Anticipatory Bail and Jurisdiction

Suppose you are ordinarily a resident of Delhi, but come to know that a case has been filed (or is about to be filed) against you in Mumbai, alleging you committed non-bailable and cognizable offences such as "Cheating", punishable under Section 420 of the Indian Penal Code 1860 [IPC]. Your law-savvy friends tell you that it is wise to urgently move an Application under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.] to get "Anticipatory Bail" and diffuse chances of an arrest. 

For those who are unaware of the term, "Anticipatory Bail" refers to a legal remedy where a person can go to court to seek bail in anticipation of her arrest on allegations of having committed a non-bailable offence, which may or may not have yet been registered as a case. If the court finds the apprehensions are genuine, and that there are reasons to protect against arrest, then it can direct the police to release the Applicant on bail in the event of her arrest.  

This, obviously, makes sense in our example, and so you get the papers ready. But here's the problem: where do you move the Application? In Delhi, where you reside, or in Mumbai where the case is filed? This post discusses the issue of jurisdiction in context of seeking Anticipatory Bail. I explain why the issue persists, and then try and make sense of the different opinions prevailing across High Courts. I argue that the wisest course seems to be to chart the middle course, and allow persons to file the Application in both places.

Some Necessary Background 

Section 438 Cr.P.C. was not part of the old Criminal Procedure Codes passed in British India. It was a new feature in the 1973 Code, based on a trend emerging in some states that was endorsed for statutory recognition by the Law Commission of India in its 41st Report (see pages 320-321 of the document), and its 48th Report (see page 10 of the document). Why was this new remedy added? In the 41st Report, the Commission argued that it was needed "mainly because sometimes influential people try to implicate their rivals in false cases for the purposes of disgracing them or for other purposes by getting them detained in jail for some days." It recommended that the power to pass such orders not be given to Magistrates, and be reserved for the Sessions Court or High Court. What the Commission recommended as Section 497-A for the old 1898 Code, has become Section 438 in the current Cr.P.C. 1973. 

As mentioned above, the idea of anticipatory bail was to ensure that persons be released on bail after arrest. Which is why many judicial decisions on the subject state that it is not a protection from arrest per se. However, in practice, anticipatory bail ends up working as a protection from arrest, because rather than arrest a person and release her on bail the police choose to not conduct any arrest at all. As a result, a person ends up requiring to file for bail once again after the police investigation is over. In a later section, I will come back to how this practical aspect of anticipatory bail also contributes to the issues of jurisdiction.       

The Jurisdiction Problem in Anticipatory Bail

Take a look at Chapter XIII of the Cr.P.C., which explains how to determine the jurisdiction of criminal courts. It is striking how this set of provisions regularly confers jurisdiction upon more than one place. This is not accidental, as it is guided by the idea that technicalities should not override the criminal process. So, if the Cr.P.C. itself is happy with multiple jurisdictions for the inquiries and trials, why am I suggesting there is a jurisdiction problem? Why can't both places, i.e. the site of accusations and the site of my fear of arrest, have jurisdiction in cases of anticipatory bail? 

This is because throughout Chapter XIII, the jurisdiction of criminal courts is based on places having connections to the alleged offence, not where the accused lives. This leads some people to argue that jurisdiction, as a concept in Indian criminal procedure, is offence-based.

This becomes important when we compare anticipatory bail with regular bail. In the latter, a person is taken into custody, and then moves for being released. In those situations, there are no qualms about where to file for release: you either go to the relevant police officer, or the court which extends your custody beyond 24 hours. And if you want to challenge your remand to custody, you go before the appellate courts within that area. Thus, custody is the key factor for deciding jurisdiction in regular bail cases, and thus ties in nicely with the Chapter XIII concepts. 

Anticipatory bail, on the other hand, precedes custody. What triggers this process is the apprehension of being taken into custody for committing a non-bailable offence. And since this apprehension is person-specific, it is quite possible for the place of potential custody to be divorced from where I reside and harbour my apprehensions of arrest. So, it appears that there are two key factors to decide jurisdiction: accusations of committing an offence, and apprehension of arrest; and it is not necessary for them to always overlap. And the place of residence for a defendant, as we saw, is not a principle for determining jurisdiction under Chapter XIII.

Besides relying on principles, the argument of particularity in deciding anticipatory bail jurisdiction also gets support from the text of Section 438(1) Cr.P.C. itself:

When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. [Emphasis mine]

The words in Section 438(1) are clear: you can apply to the High Court or the Sessions Court, not a / any High Court or Sessions Court. This "the" cannot be accidental, and therefore, must be seen as specifying one court as the court of competent jurisdiction. And since one provision of the Cr.P.C. cannot be contradicting the overarching principle on jurisdiction identified above, this particular court must be the place where the alleged offence occurred / case was registered. 

Diverging Judicial Opinion

In State of Assam v. Brojen Gogol / R.K. Krishna Kumar & Ors. [(1998) 1 SCC 397], the Supreme Court had a chance to address the issue. The case involved a batch of petitions where the Bombay High Court had granted anticipatory bail to accused persons in a case registered in Guwahati. When the State of Assam moved the Supreme Court, it transferred the cases to Assam, but while doing so expressly chose to leave the jurisdiction question undecided. 

As a result, today there is still a spectrum of divergent judicial opinion on the issue.* On one end are courts which subscribe to an expansive view on jurisdiction and allow applications to be filed in the place where the accused resides. This set includes some orders of the Delhi High Court. These courts do not bunk offence-based jurisdiction, but consider the expansive view necessary because of another, equally fundamental, principle of criminal procedure: ensuring the widest possible protection for personal liberty. 

At the other end of the spectrum are courts which subscribe to the restrictive view sketched out in the previous section. Further textual support for their view is derived from Section 81 Cr.P.C., which expressly confers jurisdiction in bail cases on a court other than the court within whose territorial jurisdiction the case is filed. Thus, the Patna High Court, Calcutta High Court, and Punjab & Haryana High Court all hold the view that only courts having jurisdiction over the place of alleged offences can entertain anticipatory bail applications.** 

Somewhere in the middle of this spectrum fall the Kerala High Court, Karnataka High Court, Bombay High Court and Gujarat High Court. The Kerala High Court held that an application can be filed where the accused resides. But, the scope of protection is limited to any arrests carried out within the territorial jurisdiction of the state. The other three High Courts don't impose territorial limits on the scope of protection, and instead place a time limit on the duration of protection from arrest, so as to enable to person to subsequently move an application before the other court. Both these views highlight different ways of expressing a judicial compromise between the rule of offence-based jurisdiction, with the other rule of protecting personal liberty from unnecessary restraint.   

Solving the Muddle 

Let me state at the outset that, in my view, the restrictive approach to jurisdiction is incorrect. 

This is because courts have wrongly derived from Chapter XIII that offence-based jurisdiction is an immutable principle in Indian criminal procedure. Chapter XIII applies to "inquiries and trials" in respect of cases. A hearing to decide whether anticipatory bail should be granted is certainly not a trial, but is it an inquiry? A Constitution Bench of the Supreme Court in Hardeep Singh [(2014) 3 SCC 92] said that the "inquiry" stage commences after filing a Charge-sheet. While this decision was in context of explaining the scope of Section 319 of the Code, the views on what is an "inquiry" are not limited to that context, are in fact supported by earlier cases as well.

Anticipatory bail hearings are at the start of the investigation process, very distant from the filing of a charge-sheet. It can be argued, therefore, that the principles of offence-based jurisdiction located in Chapter XIII are thus not applicable to the anticipatory bail context at all. Thus, while the principled opposition to residence-based jurisdiction falls, the support for such jurisdiction definitely remains, as there is nothing contrary to the principle that protecting personal liberty is a paramount consideration in the criminal process. If anything, the legislative history behind Section 438 Cr.P.C. confirms that this protection of personal liberty was the main reason why anticipatory bail was inserted in the new Cr.P.C. of 1973. To adopt a reading of the provision contrary to this express legislative intent is surely to be avoided.  

Therefore, the restrictive approach end of the spectrum is clearly undesirable. For different reasons, the views at the opposite end of the spectrum are equally undesirable — and, frankly, even the Delhi High Court has moved away from this position slowly — and make the middle ground arguably the most viable approach to follow. Even though it involves creating technically incorrect jargon — such as "transit" anticipatory bail, or "interim" anticipatory bail.

These reasons are two sets of practical considerations. The first, is how anticipatory bail orders are treated in practice (discussed a few sections above). Recall that technically anticipatory bail is not a protection from arrest. Thus, technically, the residence-based court would cease to matter after the urgent issue of anticipatory bail is decided. Because if a favourable order is passed, then the police would arrest the person and execute a bail bond, which would cement the offence-based jurisdiction henceforth. Any issues about bail etc. will have to be litigated in the local court now, because in law, that is the forum supervising the liberty of the accused person who is out on bail. 

However, we know that in practice anticipatory bail doesn't work this way. Rather, it becomes a protection from arrest because police refrain from carrying out the formal exercise of arresting the person and consequently releasing her on bail. To allow for an accused to be at liberty on the basis of orders passed by courts in a different state altogether is a problem. For starters, since there is usually no actual arrest, it means that there are, technically, no conditions on the person's liberty yet, which increases the chances of absconding; something already high if the accused lives in another state. Beyond this, I would argue that once we have moved away from the state of urgency that a scenario of anticipatory bail can entail and the principle of personal liberty is duly considered, it makes lesser sense to derogate from the logic of offence-based jurisdiction that the Cr.P.C. does subscribe to.

This is why the middle path makes most sense. It appreciates how anticipatory bail works in practice, and in this practical context gives due consideration to both principles, of protecting personal liberty and also securing local jurisdiction for prosecuting crimes. This view knows that ultimately, an order granting anticipatory bail proper is going to apply for the remainder of the investigation. Which is why it allows residence-based courts to protect against arrest for a sufficiently long period within which a person can approach the offence-based courts for anticipatory bail. One might argue that the view of the Kerala High Court, that protection from arrest cannot go beyond state-boundaries, is one that respects the federal system. But since we don't follow hard-federalism at all, and High Courts are constitutional creatures, one can also argue that the effect of a High Court's orders should certainly be allowed to travel beyond state-boundaries.

Conclusion
The issues regarding anticipatory bail and jurisdiction discussed in this post should not be issues in 2019, when we have had the provision on the statute books for almost half a century. Parliament could solve this muddle with a simple pen-stroke — delete "the" from Section 438(1) Cr.P.C. and it would seriously dilute the force in the restrictive view. But hoping for Parliament to amend criminal procedure is akin to Waiting for  Godot, and so we must wait, for the day when the Supreme Court might change its mind to settle the conflicts.

*Note, that none of these courts clearly tell us whether or not applications can also be filed before a Sessions Court.

**Note, that while the judgments don't say it, this view naturally means that if a case has not yet been filed in a particular place, then a plurality of courts can exist based on the jurisdiction rules of Chapter XIII.

[Post amended on 30.07.2019]

A Closer Look at the 1976 Deletion of Section 438 CrPC in Uttar Pradesh

(Special thanks to Ashna D and Aniket Singh for their help with research on some aspects.)

In 2019, the State of Uttar Pradesh amended the Criminal Procedure Code of 1973 insofar as it applied to the state, to re-insert Section 438 (its at the end of the linked file) which provides for anticipatory bail. This came forty-three years after the original amendment passed in 1976 by which Section 438 had been deleted, by way of Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act of 1976 ["1976 Act"]. 

This came almost nine years after a government-appointed commission had recommended the move. The Commission observed that the objects accompanying the 1976 Act had claimed deletion of anticipatory bail was necessary because it was creating "practical difficulties"; which, the Commission reasoned, was a thinly-veiled justification provided to reduce the scope of personal liberty during the state of Emergency prevailing at the time (1975-77). Since the Emergency was long gone, it no longer made sense to continue without anticipatory bail in the state. 

The deletion of anticipatory bail in Uttar Pradesh had always piqued my curiosity. The justification offered and accepted in 2009 — that it was a reaction to the declaration of Emergency — neither seemed complete nor accurate. That the Supreme Court did not fully explore the issue while upholding the constitutional validity of the amendment in Kartar Singh [yes, the TADA judgment] was also unhelpful — all that the judgment carried was the submission of the state counsel that the 1976 amendment was passed to meet the "deteriorating situation". 

This set me off on a course of digging to try and get better answers. This post is the result of that exercise. 

Setting the Scene

After two decades of various courts coming at mostly the same conclusion—that anticipatory bail could not be granted under the Criminal Procedure Code of 1898—it was mildly surprising for anticipatory bail to be codified as a possible remedy under Section 438 of the new Criminal Procedure Code in 1973. When this relief was debated in Parliament, one general critique was its potential to upend criminal investigations by denying police the chance of arrest and interrogation. On top of which was the more vocal criticism about this relief being designed to only favour the rich litigants who would get word of potential cases and then rush with their lawyers to sessions courts and high courts. 

A combination of the two contributes to the kind of scandal standard left-leaning politics of the time loved (and still does), and this led anticipatory bail to earn mentions in parliament during question hour even before its codification — usually, in relation with alleged smugglers (For instance, during Question Hour in the Lok Sabha on 01.09.1972). The discontent, perceived or otherwise, with anticipatory bail was such that, within a year of the new Code codifying the relief, a Committee had been setup in 1974 at the central level to look into the question of its "misuse". On the basis of parliamentary questions in 1977 (see, Lok Sabha Debates of 14.12.1977), it appears that this Committee looked at data for all of 1974 and concluded that there were many cases in which investigations were delayed because of anticipatory bail, and that it was being taken "advantage" of by persons "concerned in criminal activities".

Most of the other changes brought about by the 1973 Code did not affect the existing scheme of rights but affected administration of criminal law by separating the functions between executive and judiciary — a pre-independence demand, and later a constitutional promise enshrined in the Directive Principles of State Policy. The new Criminal Procedure Code separated the police from the prosecutorial wing, took away judicial functions from executive magistrates, and reduced the ability of governments to handpick courts for dealing with specific classes of cases. Many states had already taken steps towards realising the separation between executive and judiciary prior to 1973, but very few states had gone to the lengths that the new Code asked them to travel. 

Uttar Pradesh was no exception. It did not take active steps to rectify inconsistent practices with the new regime, and so it only a matter of time before the existing practices were challenged in court. By two separate judgments passed in 1975, the Allahabad High Court set aside government circulars (i) placing prosecutors under control of the police [August 1975], and (ii) placing all cases prosecuted by the CBI within the state of U.P. before one single court [November 1975]. The result of the former would be to disrupt how trials took place across the state. The latter would potentially result in a transfer of thousands of cases, as well as the establishment of several new courts across the state to then handle them.

Such unplanned financial outlay usually triggers quick government response. The same happened here, and the government decided to take immediate action by promulgating an ordinance on November 28, 1975. It was this Ordinance which then became the 1976 Act, in which anticipatory bail met its demise. 

Legislative Debates

The previous section demonstrated that, it wasn't the Emergency which led the U.P. government to delete the provision on anticipatory bail — there were rumblings at a central level prior to 1975. Further, the events leading up to the 1976 Act suggest that the deletion of anticipatory bail was one small part in what was a broader set of changes which the government pushed through to circumvent a need to change the existing administration of justice in the state. This helps understand the contents of the 1976 Act better as well. 

It would have been great to have the 1975 Ordinance and then compare it with the 1976 amendment to see if there were new insertions proposed in the Bill from what was earlier pushed through hurriedly, but I was not able to get my hands on it. What I could get access to was the legislative debates of 30.03.1976 leading up to the 1976 Act replacing the ordinance, which are available on the government website (can also be seen here for convenience) in Hindi. The debates are fascinating and, at least going by the opposition, would have one think that the High Court's judgments of 1975 were nothing but a convenient excuse to usher in a set of regressive amendments to the criminal law. The real driving force was the Emergency. By way of these changes, the government wanted to halt the separation of the executive from the judiciary, and thus keep its vice-like grip on the administration of justice in the state. 

On the question of anticipatory bail, the opposition members asked what, if any, were the glaring instances of abuse which led the government to propose such a radical change? Anticipatory bail was new, yes, and perhaps viewed with suspicion by everyone — but that had not led any other state to delete it altogether. The reply brought up the classic, haunting image of the white-collar criminals — smugglers, hoarders and black-marketeers — all taking advantage of this new provision. It wasn't only such kinds of offenders, but all notorious criminals seemed to be taking advantage of the law as per the government. Ultimately, as the law minister Prabhu Narayan put it, as everyone agreed that the police had a right to investigate fully, and since it was evident that the provision for anticipatory bail was used to stymie investigations especially by white-collar criminals and notorious persons, deleting the provision was the only possible choice for the government.    

Parallel Developments at the Centre

The 1976 Act was published in the gazette on 01.05.1976. On 26.08.1976, a Bill had been taken up for discussion in the Rajya Sabha proposing amendments to the Criminal Procedure Code, which included a suggested amendment deleting Section 438 altogether. The Deputy Minister for Home Affairs remarked that "Unfortunately, experience shows that this provision has been availed of mostly by rich people, white-collar criminals and others. It has, therefore, been proposed in Clause 31 that this provision should be deleted." 

The proposal did not meet with wholesale opposition; rather, as one member put it, it felt as if "that experiment had not succeeded". The Code of Criminal Procedure (Amendment) Bill, 1976 was passed by the Rajya Sabha and sent to the Lok Sabha. It was only because Parliament was dissolved that the debates were not carried forward on the same. However, when on 14.12.1977, questions were put up to the new Janata Government on amendment of anticipatory bail, and the Deputy Minister for Home Affairs replied that the question of amending some provisions including anticipatory bail was being examined. 

A year later, on 28.11.1978 the new government introduced a bill in the Lok Sabha to amend the 1973 Code. It was based on the same Bill that was passed in the Rajya Sabha back in 1976, but deleted clauses which the government now thought were "unnecessary and detrimental to the interests of the parties". This included the clause deleting anticipatory bail, finally setting the controversy to rest. Of course, these developments at the centre did not compel any change of heart in the State of Uttar Pradesh. Even as the state passed further amendments tweaking the Code in 1977, anticipatory bail remained ousted.    

Connecting the Dots

The brief glimpse into the turbulence that accompanied the codification of anticipatory bail in the Code of Criminal Procedure 1973 gives us a window into the circumstances which led to the forty-three year long absence of Section 438 from the State of Uttar Pradesh (though not an absence of anticipatory bail, which remained alive as an extraordinary relief given by the High Court). Ascribing that move to the Emergency and the discomfort it generated towards personal liberty is a convenient, though ultimately inaccurate, tale. Those circumstances certainly would have played a role behind the 1976 Act, but history suggests that the discontent with Section 438 existed from before, and if anything, that sense of uneasiness has never gone away. It resurfaces each time anticipatory bail is granted in a media-friendly case, at which point talking-heads cry foul over criminals "taking advantage" of the law.   

This uneasiness with "criminals taking advantage" of what the law itself provides is an irrational, emotive outburst. But it has shaped the legal regime on bail and anticipatory bail over the years. Legislatures have excluded anticipatory bail outright in various contexts after Uttar Pradesh first did it, and have also placed much stricter regimes for granting bail for certain offences. These exceptional regimes have later been upheld by constitutional courts as well. All of which proceeded on the same fallacy — labelling persons accused of certain crimes as criminals, which justified lengthy pre-trial custody in spite of the prevailing presumption of innocence. The sentiment is evident in how Uttar Pradesh has reintroduced the provision. It did not simply adopt what the central law states, but modified Section 438 to exclude its application in what might seen as "serious crimes", i.e. offences punishable with death and, of course, those punishable under the UAPA.

If we manage to look past the hullabaloo, we come across a classic struggle at play here. Underneath all that hasty labelling of persons, I would argue, is the longstanding executive mistrust of unhindered judicial independence. It is that same struggle for separating judicial and executive functions within the criminal law, which has been going on since before India's independence. 

Think about it: what the law confers in respect of non-bailable offences is merely a right to apply for bail / anticipatory bail — whether or not you get relief depends on the court. Trusting judicial discretion on matters of bail and anticipatory bail is the defining, albeit problematic, feature of the legal regime in India. In a setting where arrests and custodial interrogation is still viewed as critical for criminal investigations, courts are trusted to make the right decision on matters of bail by ensuring these interests are considered without disregarding personal liberty altogether. It is for this reason that bail is not simply about securing the personal appearance of an accused, but involves courts looking at the allegations as well. 

By taking away anticipatory bail outright or by shackling the right to bail, in cases of certain crimes, what the legislature really does is strike a blow to this belief by sending a clear message that judicial discretion cannot be trusted to make the right decision. The already wide berth given to police interests in matters of bail is expanded even further, reducing the role of courts from independent arbiters to requiring that they defer to the executive's interests and consign a person to jail on the strength of allegations, not proof. The result is a legal system in which, somehow, the judiciary is further weakened in discharging its basic role of securing personal liberty. 

Thus, even as the State of Uttar Pradesh reintroduced Section 438, this is not a break with the past. Rather, it carries forward the legacy of the original deletion by the 1976 Act, a legacy which has been gradually, and almost unquestioningly, embraced across the country with the passage of time.

Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio

The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After

In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble

Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales

Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion

While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.