Law of Anticipatory Bail Historical Perspective

LAW OF ANTICIPATORY BAIL <!--[if gte mso 10]> LAW OF ANTICIPATORY BAIL HISTORICAL PERSPECTIVE By Khadim Hussain Malik (Retd.) District & Sessions Judge Lahore There was a time when the concept of anticipatory bail was completely unknown in the sub-continent. Even no case was found to exist in the English Law wherein anticipatory bail might have been allowed. When such a relief was claimed for the first time in the Lahore High Court, Lahore, as back as in 1948, the Crown Counsel straightaway challenged the competency of the High Court to grant bail in anticipation of arrest. It is now well settled that Section 498 Cr.P.C. deals with such powers of the High Court and the Court of Session; nevertheless in the distant past there existed divergence of judicial opinion regarding the true nature and scope of this Section. Section 498 occurs in Chapter XXXIX of Cr.P.C, entitled "Of Bails" and reads as under:- "498: The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive; and the High Court or Court of Sessions may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced." The object here is to give briefly the historical background, highlighting the various stages, the process of judicial determination travelled through, in interpreting the provisions of Section 498 and formulating the final and conclusive view about the law of anticipatory bail. I. INTERPRETATION OF PRIVY COUNCIL IN RE: LALA JAIRAM DAS V. KING EMPEROR AIR (32) 1945 PRIVY COUNCIL 94 The wide terms in which the latter part of Section 498 is coached "appear to have caused some difficulty in the determination of its true nature and scope in the various High Courts in this sub-continent and until 1945 the view that prevailed in most of the High Courts was to the effect that this section gives wide and unlimited powers to the High Court and Court of Session to grant bail not only to accused persons but also to convicted persons who had not appealed against their conviction". "Several of the High Courts also took the view that the power to grant bail under this section was entirely unfettered by any conditions and the limitations set out in sections 496 and 497 of the Code." "It was in this state of divergence of Judicial opinion that in 1945 this section came up for consideration before the Judicial Committee of the Privy Council in the case of Lala Jairam Das v. King Emperor.* * As per separate observations of Mr. Justice Hamoodur Rehman in Muhammad Ayub v. Muhammad Yaqub PLD 1966 Supreme Court 1003. The Privy Council interpreted this section in the following terms: -- (i) Exclusion of inherent powers of High Court The question of bail is dealt with in Chapter XXXIX of the Code which contains a complete and exhaustive statement of the powers of a High Court to grant bail and "excludes the existence of any additional inherent power of a High Court relating to the subject of bail." (ii) Not applicable to convicted persons There is no reference in the section "to the granting of bail to persons who have been tried and convicted;" and the words "whether there be an appeal on conviction or not" "only mean that all accused persons are within the section whether their case is appealable on conviction or not." (iii) Only ancillary or subsidiary to Sections 496 and 497 As per "the scheme of Chapter XXXIX, Sections 496 and 497 provide for the granting of bail to accused persons" "and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision." II. INTERPRETATION BY LAHORE HIGH COURT After independence, the provisions of Section 498 also came up for discussion before Lahore High Court, Lahore in Hidayat Ullah Khan v. The Crown, PLD 1949 Lahore 21. Two petitions were filed in Lahore High Court, Lahore alleging initiation of criminal proceedings and consequential arrest of each of the petitioners as an accused person. It was further alleged that such arrest would amount to victimization, disgrace and dishonour. Grant of bail in anticipation of arrest was accordingly prayed. On the objection of the Crown Counsel, regarding competence of the High Court, the matter was referred to the Full Bench. Mr. Justice Cornelius, who delivered the judgment of the Full Bench, with which the other Hon'ble Members of the Bench agreed, formulated the following question for decision:-- "Whether the High Court can grant any relief, and if so what, to a person seeking an order for bail, in anticipation of his arrest for an offence?" Without dissenting from the dictum of the Privy Council in Jairam Das's case and observing that the High Court has no inherent power to grant bail, the Bench proceeded to observe "that for the purposes of this case, it will be necessary to consider the scope and object of latter half" of Section 498 Cr.P.C. "by the usual processes of interpretation ". After confining the discussion to the following words used in the section, "...the High Court may, in any case, direct that any person be admitted to bail ". the Full Bench answered the question as under; "In a proper case, the High Court has power under section 498, Cr.P.C. to make an order that a person who is suspected of an offence for which he may be arrested by a police officer or Court, shall be admitted to bail". The following principles were also laid down for guidance; (i) Not only a good prima facie ground should be made out; (ii) but it should also be shown that if the bail is refused and the petitioner is arrested, it would (a) not be for furthering the ends of justice; but (b) from some ulterior motive and with the object of injuring the petitioner or causing him an irreparable loss. III. HIDAYAT ULLAH'S CASE OVER RULED The decision given in Hidayat Ullah's case was subsequently overruled by the Federal Court in the case Crown v. Khushi Muhammad, PLD 1953 Federal Court 170. Khushi Muhammad filed an application for bail before arrest which was rejected by Sessions Judge, Lahore. He then approached Lahore High Court where Advocate General, relying on AIR 1950 Est. Pb. 53 and PLD 1950 Sind 80, containing different view to Hidayat Ullah's case, opposed the petition. Hon'ble Mr. Justice Kayani, however, allowed the petition following Hidayat Ullah's case. Against this decision a petition for Special leave to Appeal was granted to consider the question "Whether High Court or Court of Session can grant bail to any person who has not been taken into custody?" The question was answered in the negative for the following reasons: -- (i) As held in Jairam Das's case, Section 498 Cr.P.C. does not enlarge the categories of persons to whom bail can be granted under Sections 496 and 497, leading to an inference that such persons must be under custody. (ii) Section 498 Cr.P.C. being ancillary and subsidiary to Sections 496 and 497 can not deal with persons other than those covered by those Sections. (iii) The basic conception of word `bail' as defined in various dictionaries i.e. "release of a person from the custody of Police and delivery into the hands of sureties" has not been adverted to in Hidayat Ullah's case. In the light of above discussion it was also remarked that if it is desirable that High Court should possess a power to grant anticipatory bail, the remedy lies with the Legislature and the Courts are not in a position to grant any such relief in the absence of any provision of law. Rule laid down: It was, however concluded that "In the case of a person who is not under arrest but for whose arrest "warrants have been issued, bail can be granted under Section 498 Cr.P.C.", if he appears in Court and surrenders himself". IV. EXTENSION OF RULE LAID DOWN IN KHUSHI MUHAMMAD'S CASE After about 13 years of the above decision of the Federal Court, the controversy about "the powers of criminal Courts to grant bail before arrest" again cropped up in the Apex Court in Sadiq Ali's case, PLD 1966 Supreme Court 589. Sadiq Ali, who had applied for bail before arrest, was granted ad-interim bail but on final date of hearing the application was rejected by the Sessions Judge. The orderly of the Court was directed to take him into custody, but the petitioner allegedly escaped therefrom. The Sessions Judge filed a complaint against him, for having escaped from lawful custody, which was sent to a Magistrate. The petitioner approached High Court for quashment and in the alternate for transfer of case to some other court. The quashment was declined but the case was transferred to the Court of Sessions Judge of another District. The appellant applied for Special Leave to Appeal which was granted. The following question fell for consideration in this case; "Whether the rule in Khushi Muhanunad's case should not be extended to cover the case of an accused person who is in imminent danger of arrest, by the Police, without warrant in respect of cognizable offence alleged to have been committed"? The entire case law on the subject, as well as some cases from English Law were examined. No decided case in English Law was found "in which anticipatory bail might have been allowed to an accused person, threatened with arrest by Police ". After detailed discussion the court reached at the conclusion that: "The rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person, whose arrest, on a criminal charge of Police, without warrant, is proved to be imminent and certain and where the circumstances would justify the grant of bail" . Parameters for the rule: It was cautioned that the above rule would be applicable only "in circumstances of grave character, affecting the liberty of a citizen. Indiscriminate grant of bail, however, merely on the request of a person, who appears in Court, and thereby surrenders himself to that Court, without the other conditions for such bail being satisfied, would amount to an act of Judicial extravagance which can not be countenanced". V. LAW OF ANTICIPATORY BAIL---AUTHORITATIVE PRONOUNCEMENT In the case Muhammad Ayub v. Muhammad Yaqoob and State, PLD 1966 SC 1003 once again the "exact scope of powers conferred on the High Court and Court of Session, by Section 498 Cr. P. C. " came up for consideration. Muhammad Yaqub, along with others was involved in a murder case, which was pending trial in the Sessions Court He moved a bail petition in the Lahore High Court, Lahore which was dismissed. Three days later he moved another petition which came up for hearing before a different Judge who granted the same. The complainant in the case preferred a petition for cancellation of the bail which was dismissed by the Judge who had granted the bail. The complainant then moved for Special Leave to Appeal which was granted. Following grounds were taken: (i) No fresh ground had been urged in the second petition for bail; and (ii) Section 498, Cr.P.C. did not enlarge the powers of the High Court to grant bail in cases not covered by Section 497 Cr.P.C. While opposing the petition, the opposite counsel, laying stress on the words "in any case" and "any person" occurring in Section 498, argued that this section confers unfettered discretion on the High Court and Court of Session to grant bail, irrespective of the limitations imposed by Section 497. As the decisions in cases of Khushi Muhammad and Sadiq Ali were based on the dictum of the Privy Council in Jairam Das's case, it was also submitted that the said dictum be reconsidered. The Supreme Court, by its majority judgment, determined the exact scope of Section 498 and proceeded to accept the appeal, setting aside the bail granting order of the High Court. The salient features of the judgment are as under: (i) Opinion of Privy Council not differed with: The Supreme Court declined to make a different and new construction of Section 498 from the one made in Jairam Das's case, "holding to be not covering the case of a convicted person", as no "strong grounds are made out for rejection of construction of a statute hitherto accepted on the authority of the Privy Council". (ii) As `ancillary' or `subsidiary' to Sections 496 and 497: The argument with regard to interpretation of general words `in any case' or `any person' was also not accepted. It was held; "The better view seems to be that the policy of law in respect of bail to persons accused of non-bailable offence, is laid down in Section 497 and the same policy should be kept in view, while considering the question of bail under section 498....In this respect, therefore, Section 498 seems to me to be ancillary to subsidiary to Sections 496 and 497, in the words of the Privy Council". (iii) As supplementary provision: In other respects, Section 498 was held to occupy the position of a supplementary provision in so far as it, (a) confers concurrent and revisional powers on the High Court and Court of Session in respect of bail by subordinate Courts and the police; and (b) enables these courts to "exercise the power of anticipatory bail", in suitable cases. (iv) Word "appears"- meaning of: In Sadiq Ali's case the Supreme Court had held that the word `appears' occurring in Sections 496 and 497 includes voluntary appearance of an accused. This view was modified observing: "....the view in Sadiq Ali's case may require a little modification in so far as the word "appears" in Sections 496 and 497, need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. The word may be taken to have been used, in the same sense as in section 242 or 252* of the Code; which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving Section 498 in its own right." * Omitted by Law Reforms Ordinance 1972. (v) Persons covered by Sections 496 and 497: As a conclusion it was observed: "The position that emerges then would be that under sections 496 and 497 Cr.P.C. the Court can bail out a person only if: -- he has been placed under actual arrest or -- appears in answer to a process issued or -- is brought before the Court, presumably by the police or some other arresting authority. In other words these sections apply where there has been actual arrest attracting the Court's jurisdiction or the Court is seized of the proceeding directly, in which bail is requested." (vi) Anticipatory Bail: "Section 498, however, would be called in aid before the Court of Sessions and the High Court, even, where the Court is not seized directly of the proceedings in question and where no actual arrest has been made so far but anticipatory bail is asked for, e.g. where the case is still at a stage of investigation by the police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope". VI. CONTROVERSY SET AT REST The passage of the above historic judgment of the Supreme Court, making an authoritative judicial interpretation of such a complex statutory provision as Section 498 and determining the true scope of the powers conferred thereby on the High Court and Court of Session, has exceedingly gone a long way in setting at rest the controversy and removing the hitherto prevailing uncertainty and ambiguity, respecting thereto. VII. POSITION OF HIDAYAT ULLA'S CASE "The criteria laid down in Hidayat Ullah's case has not undergone any change so far The golden principles in Hidayat Ullah's case must strictly be followed."1 1. Shabbir Ahmad v. State PLD 1981 Lahore 599. VIII. PRECEDENT LAW It would be seen that the prevalent law of anticipatory bail is the result of judicial law making, i.e. judge-made rule of law by judicial interpretation of Section 498, whereas in India it is statutory one. Section 438 has been specifically introduced for the first time in the new Indian Cr.P.C, 1973, conferring similar powers on High Court and Court of Sessions:-- "When Section 497 and 498 Cr.P.C. were enacted probably the framers of the Code did not clearly visualize anticipatory bail. It is however, through precedent law which has now the force of statutory law that a petition for anticipatory bail under section 498 read with section 497, can competently be made."2 2. Khalid Rasheed v. State PLD 1972 Lahore 722