BAILED OUT

An entreaty for anticipatory bail bond demand not necessarily be followed by a tribunal appearance, states the Law Commission. Shabina Akhtar reports

On the hunt: Both Saif Muhammad Muhammad Ali Caravansary and his father Mansoor Ali Caravansary Pataudi had applied for anticipatory bail bond in separate incidents of achromatic vaulting horse shooting

Aftab Alam (name changed on request), a relative of one of the accused in the recent Ripon Street force in Calcutta, appealed for anticipatory bail bond because he feared he would be arrested. To do so, he had to make a tribunal visual aspect when the concluding finding of fact was being passed, while his indisposed female parent was in hospital.

But people in a state of affairs like this may no longer necessitate to worry. The Law Committee of Republic Of India have asked the cardinal authorities to get rid of a criminal law proviso that necessitates a individual seeking anticipatory bail bond to look before the court. According to this provision, the individual can also be arrested on the topographic point if his or her supplication is rejected.

Anticipatory bail, which come ups under Section 438 of the Code of Criminal Procedure (CrPC), is nil but a court's way to let go of a individual on bail, issued even before the individual is arrested. Two old age ago, an amendment to this law was sought through the Code of Criminal Procedure (Amendment) Act, 2005. With lawyers protesting against its implementation, for they felt their clients could be unnecessarily harassed, the authorities kept its enforcement in suspension and sought the expert sentiment of the Law Committee of India.

The statement submitted by the authorities said that the Law Committee was asked to "suggest a modified version to do the proviso feasible with suitable precautions to protect the rights and autonomy of citizens". The amendment necessitates the applicant's presence at the concluding hearing if the public public prosecutor have made an application to the tribunal to see his or her presence necessary in the involvement of justice.

After two old age of research and elaborate analysis, the Law Committee in its study in December-end last twelvemonth reminded the authorities of the Supreme Court's determination in the M.C. Abraham volts Government of Maharashtra lawsuit where the rejection of anticipatory bail bond was considered "no land for directing the contiguous apprehension of the accused". The commission, headed by Justice A.R. Lakshmanan, observes, "There may be lawsuits where an application may be rejected and yet the applier is not set up for trial as, after investigation, no stuff is establish against him."

Seeking the omission of sub-section 1(B) of Section 438 of CrPC, the committee held that the relatively new proviso was inaccurate as it empowered the police force to collar the accused in the tribunal without a warrant on yet-to-be established accusations. This determination of the committee have definitely acted as a balm for the protesting lawyers.

"An applier framed on false complaints could have got been forced by the public prosecutor to be present at the clip of the concluding verdict. This could have got been a gambit to guarantee the applicant's apprehension once the tribunal rejected his plea. So from the defense mechanism point of view, it (the amendment of 2005) was definitely unacceptable," explicates Sardar Amjad Ali, senior advocate, Calcutta High Court. "At the same time, the omission of the proviso would ensue in the curtailment of the powerfulness of the tribunal to freely see a lawsuit of anticipatory bail bond because it would take away the right of the tribunal to suppress the police force from arresting the applier during the time period of consideration of the application."

However, he keeps that the committee tried its best to hit a balance between the prosecution and the defence, but also felt that it should have got suggested appropriate measurements relating to the detention of the accused before the concluding judgment.

Taj Mohammad, deputy sheriff director, public prosecution, South 24-Parganas, looks to have got a similar opinion. "The study submitted by the committee doesn't impact the spirit of the prosecution. The study looks fine. However, from a prosecutor's point of view, the presence of the accused would definitely profit the investigating officers," he says.

Not everybody agrees. "The amendment of 2005 isn't sensible as the applier at that point of clip have no interim order. So it's easy for the police force to collar him on rejection of bail," states Sekhar Basu, senior criminal lawyer, Calcutta High Court. "Prosecutors are the mouthpiece of the investigating military officer and will always desire the plaintiffs in error to be present. But if their presence is required at all, allow the justice make up one's mind on it."

On being asked about his reaction to the omission of the sub-section of Section 148 of CrPC, he says, "First, the law shouldn't have got been amended in 2005. Now that they have got realised the mistake and taken appropriate stairway to check up on it, I'd state it's break late than never." He, however, points out that once prevenient bail bond is rejected, the police force are free to arrest. "This is perhaps aspirant thought on the portion of the committee which is seeking to hit a balance between the demands of the probe squad and the personal autonomy of the appellant. Gratuitous to say, it's always the former who acquires an upper hand."

Amidst all the argument of whether the determination is a valid 1 or not, Amitava Ganguly, particular prosecutor, Government of India, says, "This amendment isn't going to impact the disposal of justice. One demands to maintain in head that the apprehension of the accused is only a minor portion of the investigation. In many countries, the accused aren't arrested till the concluding complaint sheet have been drafted. It's a good determination that have to be welcomed."

The committee also noted that the co-existent jurisdiction of the Court of Session (where the lawsuit is on) and the high tribunal under Section 438 had generated "avoidable" litigation. The codification makes not order any specific order in which the two option co-existent forums are to be approached for the grant of anticipatory bail bond — the pick having been left to the applicant. It recommended streamlining the process by suggesting that if an application under Section 438 is made by a individual either to the high tribunal or the Court of Session, no additional application by the same individual shall be entertained by the other court.

"In a nutshell, all the recommendations made by the Law Committee are jump to debar the accused from purchasing more clip to do a fresh entreaty at a higher court. So despite deleting the clause it looks like the committee have chosen to allow the powerfulness dwell with the fact-finding officers," sums of money up Sardar.