Anticipatory Bail, also referred to as the pre-arrest bail, is a misnomer as it is not a bail which has been granted in the anticipation of arrest. It comes into play only after the person has been arrested that the court would grant anticipatory bail. The main point of distinction between an ordinary bail and anticipatory bail is that the former is granted after arrest and implies the release from the custody of police; latter being granted in the anticipation of arrest, becomes effective, the moment an arrest is made.
The need for incorporating the provision of anticipatory bail under CrPC can be traced down to the 41st law commission report where it was observed that there may be several instances when the influential cadre of the society or the politically spirited leaders with the accentuation of political rivalry try to implicate their rivals in false cases and get them detained in the jail. Another reason which the commission considered it necessary for having a provision of anticipatory bail in the CrPC can be adduced to the fact that no rationale and justification is seen in detaining a person under custody, forcing him to remain in prison for a couple of days, and then making an application for the grant of bail, when there appear reasonable grounds for holding that an accused isn’t likely to abscond or misuse his liberty while being on bail.
The provision for the grant of anticipatory bail under the PoA Act provides that anticipatory bail as mentioned under CrPC, shall not be granted under the Act if an atrocity (as defined u/s 3 of the Act) is committed against a member of the SC/ST. Hence, §18 of the Act creates a bar for invoking §438 of CrPC. For determining whether the offences under §3 of the Act are committed or not the courts have to determine whether prima faciehas been made out or not.
The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989is primarily aimed at preventing the commission of offences of atrocities against the members of Scheduled Castes and Scheduled Tribes, providing for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. This was the sole reason why the legislators were apprehensive to carve out a provision of anticipatory bail under the Act as these offences form a distinct call by themselves and can’t be compared with other offences.
Therefore, denial of the right to anticipatory bail to an accused can’t be termed as unreasonable or violative of Art 14 of the Indian Constitution. On the other hand, if a provision is carved out for the grant of anticipatory bail, then there is a higher possibility that the perpetrators of such atrocities may threaten and intimidate the victims. Owing to this reason, the legislators felt it appropriate to keep the provision of anticipatory bail out of the room and mentioned that in refuting an accused his right u/s 438 there is no infringement of his right under Art 21 of the Indian Constitution.
Over times, the courts have ruled that an accused would be entitled to anticipatory bail for an offence committed under the Act, if no prima facie case is made out against him. This requirement of establishing the prima facie case has been unduly taken advantage by the accused charged of an offence under the Act. As mentioned earlier, if the statement of a victim is taken on oath u/s 164 of the CrPC, which depicts that there has been a specific averment, and the allegations pertain to the caste of victim then, it would be a reasonable ground to attract the provisions of the PoA Act.
The Supreme Court has laid down a very high threshold for granting anticipatory bail and carved out an exception that the power of courts to grant anticipatory bail should only be exercised only when the contents of the FIR and other evidence on record don’t make out a prima facie case against the accused and only when the courts are satisfied that such requirements are not met, it can grant anticipatory bail. The court further ruled that such power should not be used sparingly and that the high courts must balance the societal interest while exercising their jurisdiction u/s 438 of CrPC.
The offences under PoA Act, unlike other offences enumerated under IPC, are graver and form a distinct and separate class by themselves. There being safeguards, restrictions and adequate standards to deny anticipatory bail to the accused; the Act doesn’t put any stringent restrictions on the grant of regular bail and an accused can very well move an application for seeking regular bail. The other side of the coin reveals that special statutes such as Unlawful Activities (Prevention) Act, 1967 (UAPA), Terrorist Affected Areas (Special Courts) Act, 1984, Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and Maharashtra Control of Organised Crime Act, 1999 (MCOCA) not only lay down a twin test for the grant of regular bail but also puts a restriction on anticipatory bail granted to an accused person under either of these Acts.
The twin test for granting the bail mentions that there are reasonable grounds for believing that the accused is not guilty of such an offence, and that while being released on bail, he is not likely to commit any offence. The statutes also make it imperative that an opportunity must also be given to the public prosecutor to move an application for opposing such bail application. Though the bail is to be granted under exceptional circumstances, yet the apex court has ruled that given the nature of offences, whenever there arises a conflict between the individual liberty and the state security, the latter is to be given utmost priority.
The provisions & standards for a bail application under MCOCA u/s 21(4) of the Act are much greater than those u/s 439 of CrPC. This is due to the fact that such organised criminal activities pose a substantial threat to the society at large and the release of perpetrators of such crimes on stringent conditions of bail doesn’t guarantee that the activities of such criminal organisations would cease. Since there can’t be a liberal approach to bail under MCOCA, due to the inherent characteristic of such offences to hamper the public tranquillity, the bail would not be granted unless the judge on reasonable belief assumes that there seem no chances of convicting the accused.
Analysing these statutes it seems that there are no safeguards to deny regular bail to an accused under the latter and the provisions of bail under the general statute i.e., the CrPC will continue to apply. Considering the drastic impact that the accused persons can have on social order, the legislators accounted special provisions not only for anticipatory bail but also at the stage of grant of regular bail. Diagonally opposite are the provisions of PoA Act, 1989 which only put a restriction at the stage of anticipatory bail and doesn’t lay down any test or criteria for the grant of regular bail. Therefore, it could be possible that denial of anticipatory bail to the accused charged of an offence under the PoA Act could pave the way to opt for regular bail and the court that refused to grant anticipatory bail may grant regular bail. Therefore, it seems that there lies an anomaly between §18 of the PoA Act 1989, and §437 of the CrPC and reforms must be proposed in the PoA Act, 1989 so that mechanisms similar to such special statutes may be devised.
An analysis of the above-mentioned parts clearly depicts that the courts by indulging into the appreciation of facts and circumstances of each case commit a grave error in acquitting the accused, which has a direct impact on the victim and deters him/her in registering the complaint, thereby leading to more atrocities being committed against the members of SC/ST. One of the fundamental principles of criminal jurisprudence is the presumption of innocence until proven guilty and inspired by this notion the apex court in its ruling in 2018 enumerated several guidelines that needed to be followed while registering a case under the said Act. Though the rights of the accused are conferred under the Code, and are the governing principles to ensure a fair trial, the court placed undue reliance and opined that jeopardising the liberty only on the one-sided version of the complainant violates the principles of natural justice. But it must be noted that the offences of atrocities have been going on for a considerable amount of time and there is an indeed a need for stringent and strict legislation which could represent the interests of these downtrodden sections of the society; an aspect which was taken due care, by the 2020 ruling of the court and the subsequent amendment in the Act.