Lord Krishna thus told Arjun that “For a self-respecting man, infamy is worse than death.”
“This difficulty (as referred to by Lord Krishna) can be overcome by restoring the provision for anticipatory bail,” said the Uttarakhand High Court which has recommended restoration of provision for anticipatory bail in the state.
“I am of the view that there must be a provision for anticipatory bail in the State of Uttarakhand. This Court, therefore, makes a suggestion/recommendation to the Uttarakhand Government to issue an ordinance to restore the provision for anticipatory bail by repealing Section 9 of the U.P. Act No. 16 of 1976 and empowering the High Court as well as the Sessions Courts to grant anticipatory bail,” ordered Justice Lok Pal Singh.
Justice Singh directed the Registrar General to send a copy of his order to the Principal Secretary (Home) and Principal Secretary (Law-cum-L.R.), Government of Uttarakhand, forthwith, who in turn have been requested to urgently place the matter before the Chief Minister, “to do the needful for issuing the ordinance”.
The court so ordered while hearing a petition seeking quashing of FIR registered in Haridwar in July 2018 for the offence of cheating, criminal intimidation etc., and seeking direction to the police to not arrest the petitioner.
While directing that no coercive step be taken against the petitioner till the next date of hearing, the bench said it “has noticed that filing of the writ petition, for quashing of the F.I.R. and seeking interim protection in respect of cognizable offences, having imprisonment of less than 7 years, is increasing day-by-day”.
Section 438 CrPC provides for the grant of bail to person apprehending arrest.
The State of Uttar Pradesh by way of enactment had omitted Section 438 of CrPC. In view of the provisions of the Uttar Pradesh Reorganisation Act, 2000, the law applicable on the appointed day in the State of UP was applicable to the State of Uttarakhand. Thus, the provisions of Section 9 of Act No.16 of 1976, omitting the provisions of Section 438 of CrPC are also applicable in the State of Uttarakhand, meaning thereby that there is no provision for grant of bail to person apprehending arrest in the State of Uttarakhand.
“Article 21 of Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law,” reiterated Justice Singh.
Referring to the apex court’s decision in the case of Maneka Gandhi vs. Union of India, DK Basu’s case and Arnesh Kumar vs State of Bihar, wherein the court has stressed on right to reputation and how random arrest affects liberty while also stressing that before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence.
“The arrest of a person without following the principle of law violates the personal liberty. Unless credible evidence is collected and unless the Investigating Officer comes to the conclusion that the accused shall flee away from the clutches of the law, a person should not be arrested even in a cognizable offence,” said Justice Singh.
It also referred to the Allahabad High Court’s observation in Amarawati vs. State of U.P. wherein the court had said, “In our opinion any application for bail under Section 437 CrPC should ordinarily be decided by the Magistrate the same day, except in rare cases where reasons shall be recorded in writing for adjourning the hearing of the bail application”.
“It may be mentioned that a person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principle that goodwill of a firm is an intangible asset. In practice, if a person applies for bail he has to surrender in Court, and normally the bail application is put up for hearing after a few days and in the meantime, he has to go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is irreparably tarnished in society,” the Allahabad High Court had said.
Justice Singh then observed, “The provision for anticipatory bail was introduced in the CrPC because it was realized by Parliament in its wisdom that false and frivolous cases are often filed against some persons. Often false First Information Reports are filed e.g. under Section 498-A IPC, Section 3/4 of Dowry Prohibition Act, etc. and grandmothers, uncles, aunts, unmarried sisters etc. and sometimes even the mediator of the marriage, are implicated in such cases, even though they may have nothing to do with the offence.
“Sometimes unmarried girls have to go to jail, which may affect their chances of marriage. Even if the First Information Report is false and frivolous, a person has to go to jail and has to obtain bail, and for that he/she has to first surrender before the learned Magistrate, and his/her bail application is heard only after several days (usually a week or two) after giving notice to the State. During this period, the applicant has to go to jail. Even if such person subsequently obtains bail, his/her reputation may be irreparably tarnished.”
“The reputation of a person is a valuable asset for him, just as in law, the goodwill of a firm is an intangible asset,” he noted before recommending restoration of Section 438 CrPC in Uttarakhand.
Read the Order Here