In recent times, the role of the investigation agencies resulting in the arrest of citizens from a cross-section of society has brought the focus back from the basic but fundamental principles of criminal jurisprudence. Debate on this subject should not be confused with the powers of agencies to prosecute citizens alleged to be involved in all kinds of offences and have them tried in accordance with the law. The fundamental issue is of their rights pending investigation and trial.
Article 20 expressly empowers citizens against “self-incrimination”. Article 21 deals with “Right to Life and Personal Liberty”. The guarantee of “presumption of innocence” bears a direct link to the “right against self-incrimination”, since compelling the accused person to testify would place the burden of proving innocent on accused instead on requiring the prosecution to prove guilt. The Supreme Court, in Selvi v. State of Karnataka (2010) has held, “In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi’s case (1978) 1 SSC 248. Hence, we must examine the ‘right against self-incrimination’ in respect of its relationship with the multiple dimensions of ‘personal liberty’ under Article 21, which include guarantees such as the ‘right to a fair trial’ and ‘substantive due process’. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution …”
It approved the law declared in Nandini Satpathy versus PL Dani (1978) to the effect: “…And Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station”
Protection under Article 20(3) extends to the stage of the investigation as per law declared by Supreme Court since 1954 in MP Sharma v. Satish Chandra (1954) and later affirmed in Kathi Kalu Oghad (1961) wherein the Court held, “…If the protection was intended to be confined to being a witness in Court then really it would have been idle protection. It would be completely defeated by compelling a person to give all the evidence outside the court and then, having what he was so compelled to do proved in court through other witnesses.”
So, in Selvi’s case, the Court authoritatively held, “While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), Cr. P.C. is wider. Section 161(2) read with 161(1) protects ‘any person supposed to be acquainted with the facts and circumstances of the case’ in the course of the examination by the police.”
The Court wisely rejected the argument of a “compelling public interest in eliciting information that could help in preventing criminal activities in future” by holding that:“One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question” Time has come for the Police, Prosecutors, the Defence Lawyers and of course the Judges to refresh themselves with this law to protect the citizens.
The Criminal Procedure Code of 1898 did not contain any specific provisions to Anticipatory Bail. The Law Commission of India in its 41st Report in 1969 pointed out the necessity of introducing such a provision in the Code with following telling words: “The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. The necessity for granting anticipatory bail arises mainly sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then the election for bail. We recommend the acceptance of this suggestion.”
Law on this was finally and firmly declared by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia’s Case(1980)
“When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation… It is an order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.”
In 2019, this caution assumes much greater importance.
The Court held, “The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of individual and presumption of innocence.” Court warned Judges; “Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket.. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.”
The Constitution Bench emphatically disapproved the judgement of Punjab and Haryana High Court under challenge before it wherein the High Court had observed, “.. The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised” by holding, “How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that the blatantness of the accusation will suffice for rejecting bail, even if the applicant’s conduct is painted in colours too lurid to be true? Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefore is imprisonment for life.” More particularly, it held;
“For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.”
It also rejected the argument that this power must be exercised in exceptional cases by holding, “But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it of an extra-ordinary character.” Court even read into Article 21 into this power.
Unfortunately, in later decisions Court consisting even of smaller Benches refused to follow this Law on perceived objections. Fortunately, this approach was criticised by Court itself in Siddharam Satlingappa Mhetre versus State of Maharashtra (2011), saying; “The judgments and orders mentioned in para 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia’s case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing Section 438 Cr.P.C.”.
Since then, the Supreme Court has followed Sibbia’s judgment and approved grant of Anticipatory Bail in Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) and Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018).
Why then in a recent judgment dated Septemeber 5, 2019, the Supreme Court declined refief to P.Chidambaram in complete disregard of the Constitution Bench Judgment is a mystery. It has erroneously held;
“power under Section 438 Cr.P.C is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases”.
Again, the court wrongly concludes, “However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake.” and that, “Power under Section 438 Cr.P.C being an extraordinary remedy has to be exercised sparingly; more in so in cases of economic offences.” In complete disregard of Articles 20 and 21 it holds;
“Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court.”
Whether or not P.Chidambaram is guilty or not will be established in the trial. He is charged and therefore must face the trail unless he has recourse to any other remedy. Bust in denying Anticipatory Bail to him, the Supreme Court has done great injustice not just to him but to the Nation, to Constitutional guarantees and to the Parliament which incorporated Section 438. Most of all, it has done great disservice to the good law declared by the Constitution Bench. Inconsistent decisions will hurt many depriving them of a just remedy.
One can hope that Judge across the country will apply basic but fundamental principles of Criminal Jurisprudence intertwined with Constitutional safeguards in dealing with Citizens pending their trials. Let us remind them that Courts ultimate Custodians of Citizens and their Rights.
DISCLAIMER : Views expressed above are the author’s own.