[BAIL] Questions & Answers By Justice V. Ramkumar- Anticipatory Bail [Part-III]

Q.10 During the pendency of an application for anticipatory bail, can the accused be arrested by the police officer in the absence of any interim order or direction by the Court?

Ans. Yes. In order to make the position beyond any ambiguity, a proviso is sought to be inserted in Section 438 (1) Cr.P.C as follows:-

“Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in- charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.”

Q.11 Where the accused charged with multiple cases in different places, has been granted bail, is not his inability to avail the said benefit due to incarceration on account of production warrants in other cases, violate of the right to life under Article 21 of the Constitution of India?

Ans. No. All that the Court can do is to direct speedy trail of the cases. (Vide para 50, 57, 58 and 63 of Narinderjit Singh Sahno v. Union of India – (2002) 2 SCC 210 = AIR 2001 SC 3810 – 3 Judges – G. B. Pattanaik, Umesh C. Banerjee, S. N. Variava - JJ).

Q.12 Is it correct to say that an order under Section 438 Cr.P.C. is intended to confer conditional immunity from touch and confinement as envisaged under Section 46 (1) Cr.P.C. ?

Ans. Yes. (vide para 6 of Naresh Kumar Yadav v. Ravinder Kumar – (2008) 1 SCC 632 = AIR 2008 SC 218 = 2008 (1) KLT 839 - Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ).

Q.13 While dismissing an application for anticipatory bail can the Court permit the accused to surrender and file an application for regular bail before the concerned Court and direct the concerned Court to dispose of it on the date of its filing ?

Ans. Yes. Provided the State undertakes to produce the relevant records before the concerned Court on receipt of 3 days’ advance intimation regarding date of surrender by the accused. (Vide Para 8 of Naresh Kumar Yadav v. Ravinder Kumar – (2008) 1 SCC 632 = AIR 2008 SC 218 - - Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ; Nathu Singh v. State of U.P. 2021 SCC online SC 402 – N. V. Ramana - CJI. Held that the High Court can pass such an order and the Supreme Court can also pass an order in exercise the power under Article 142 of the Constitution of India; Para 19 of Rahul R.U. v. State of Kerala 2021 (4) KHC 44 – R. Narayana Pisharadi - J).

NOTE BY VRK: This decision justifies the orders which Justice V. Ramkumar used to pass in applications for anticipatory bail.

Ans. No, provided the accused is not arrested. (Vide para 12 of Ravindra Saxena v. State of Rajasthan – (2010) 1 SCC 684 – Tarun Chatterjee, Surinder Singh Nijjar - JJ; Bharat Choudharry v. State of Bihar – (2003) 8 SCC 77 = AIR 2003 SC 4662 – N. Santhosh Hegde, B. P. Singh - JJ).

Q.15 Can anticipatory bail be granted to an accused person against whom the material already collected disclose an accusing finger ?

Ans. No. Here the case involved the siphoning of Rs.133 crores of foreign exchange involving Foreign Exchange Regulation Act, 1973 (“FERA” for short) as a result of a well orchestrated conspiracy hatched in and out of India. (Vide Directorate of Enforcement v. P.V. Prabhakar Rao – (1997) 6 SCC 647 = AIR 1997 SC 3868 – 3 Judges – M. K. Mukherjee, S. P. Kurdurkar, K. T. Thomas - JJ).