Arrest without reason, bail denial violation of fundamental right: SC

Supreme Court on Friday said the police should not arrest people on flimsy grounds as it could lead to great ignominy and denial of anticipatory bail was also a violation of an individual`s fundamental right to personal liberty.

Updated: Dec 03, 2010, 21:59 PM IST

New Delhi: The Supreme Court on Friday said the
police should not arrest people on flimsy grounds as it could
lead to great ignominy and denial of anticipatory bail was
also a violation of an individual`s fundamental right to
personal liberty.

A Bench of Justices Dalveer Bhandari and K S
Radhakrishnan said in a judgement that anticipatory bail
granted to a person should continue till the conclusion of the
trial and no conditions should be imposed for the accused to
surrender to obtain a regular bail.
"A great ignominy, humiliation and disgrace is attached
to the arrest. Arrest leads to many serious consequences not
only for the accused but for the entire family and at times
for the entire community. Most people do not make any
distinction between arrest at a pre-conviction stage or
post-conviction stage.

"The proper course of action ought to be that after
evaluating the averments and accusation available on the
record if the court is inclined to grant anticipatory bail,
then an interim bail be granted and notice be issued to the
public prosecutor," Justice Bhandari, writing the judgement,
said.

The apex court made the remarks while granting
anticipatory bail to Siddharam Satlingappa Mhetre, a Congress
leader allegedly involved in the killing of a BJP worker on
September 26, 2009, in Maharashtra.

Mhetre moved the apex court after the Bombay High
Court had dismissed his anticipatory bail plea.

"The arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that
case.

"Personal liberty is a very precious fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the
case." the Bench said.

The apex court said it is a common knowledge that a
large number of undertrials are languishing in jail for a long
time even for allegedly committing very minor offences.
"This is because section 438 CrPC(anticipatory bail
provision) has not been allowed its full play. The gravity of
charge and exact role of the accused must be properly
comprehended.

"Before arrest, the arresting officer must record the
valid reasons which have led to the arrest of the accused in
the case diary. In exceptional cases, the reasons could be
recorded immediately after the arrest so that while dealing
with the bail application, the remarks and observations of the
arresting officer can also be properly evaluated by the
court," the Bench said.

The apex court said the tendency of the courts to
grant anticipatory bail with conditions like asking him/her to
surrender before a court for regular bail was contrary to the
statute and ruling set by a Constitution Bench.

"The court would certainly be entitled to impose
conditions for the grant of bail. The public prosecutor or
complainant would be at liberty to move the same court for
cancellation or modifying the conditions of bail any time if
liberty granted by the court is misused.
"The bail granted by the court should ordinarily be
continued till the trial of the case. The order granting
anticipatory bail for a limited duration and thereafter
directing the accused to surrender and apply before a regular
bail is contrary to the legislative intention and the
judgement of the Constitution Bench in Sibbia?s case," the
Bench said.

In the said case, the Constitution Bench had elaborately
dealt with bail rules and stipulated that no such conditions
can be imposed while granting anticipatory bail.

"All human beings are born with some unalienable rights
like life, liberty and pursuit of happiness. The importance of
these natural rights can be found in the fact that these are
fundamental for their proper existence and no other right can
be enjoyed without the presence of right to life and liberty.

"Life bereft of liberty would be without honour and
dignity and it would lose all significance and meaning and the
life itself would not be worth living. That is why `liberty`
is called the very quintessence of a civilised existence," the
bench said.

The bench, however, said the court which grants the bail
also has the power to cancel it.

"The discretion of grant or cancellation of bail can
be exercised either at the instance of the accused, the public
prosecutor or the complainant on finding new material or
circumstances at any point of time.
"The court which grants the bail has the right to
cancel the bail according to the provisions of the General
Clauses Act but ordinarily after hearing the public prosecutor
when the bail order is confirmed, then the benefit of the
grant of the bail should continue till the end of the trial of
that case," it said.

According to the apex court, Section 438 CrPC does not
mention anything about the duration to which a direction for
release on bail in the event of arrest can be granted.

"The order granting anticipatory bail is a direction
specifically to release the accused on bail in the event of
his arrest. Once such a direction of anticipatory bail is
executed by the accused and he is released on bail, the
concerned court would be fully justified in imposing
conditions including direction of joining investigation," the
bench said.

The apex court said the performance of the judicial
officers must be periodically evaluated on the basis of the
cases decided by them.

"In case they have not been able to maintain a balance
between personal liberty and societal interests, the lacunae
must be pointed out to them and they may be asked to take
corrective measures in future.

"Ultimately, the entire discretion of grant or refusal
of bail has to be left to the judicial officers and all
concerned must ensure that grant or refusal of bail is
considered basically on the facts and circumstances of each
case," the bench added.

PTI