The Supreme Court observed that despite several Law Commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon.
The bench comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat passed a judgment in case titled as Sushilla Aggarwal and others v. State (NCT of Delhi) and another.
Learned Senior Advocate appearing as Amicus Curiae relying upon the decision of Apex Court in the case of Balchand Jain v. State of M.P. submitted that though the expression “anticipatory bail” has not been defined in the Code, as observed by this Court in the aforesaid decision, “anticipatory bail” means “bail in anticipation of arrest”.
It was submitted that in a decision, the Court has further observed that the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. It is submitted that when a competent court grants “anticipatory bail”, it makes an order that in the event of arrest, a person shall be released on bail. It was submitted that there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.
The Supreme Court observed that Joseph Story, the great jurist and US Supreme Court judge, remarked that “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice."
The Supreme Court stated that the history of our republic – and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.
The Supreme Court observed that despite several Law Commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the court, in granting pre-arrest or anticipatory bail, especially regarding the duration, or until charge sheet is filed, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.
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