Source: The Hindu

Introduction

Recently, the Supreme Court granted interim bail in the case of Arvind Kejriwal v. Directorate of Enforcement (2024) to Delhi Chief Minister in the liquor policy case till 1^st June 2024 to campaign for the Lok Sabha elections.

What are the Grounds on Which Interim Bail is Granted?

• The Court's granting of bail to Arvind Kejriwal is conditional on him refraining from entering the Delhi Secretariat and the Chief Minister's office.
• He is also required to adhere that he will not sign any official documents unless necessary to obtain the Lieutenant General's approval.
• If courts consistently applied the fundamental principle of granting bail to those unlikely to flee justice, while implementing measures to mitigate their potential influence on witnesses and preserve evidence, bail orders would not provoke political controversy or cast doubt on whether the political elite are receiving preferential treatment.

What is Bail?

• About:
  • Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.
  • In Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973) case, the Calcutta High Court explained the principle behind giving Bail.
• Concept of Bail
  • Bail, a legal provision within the CrPC and BNSS facilitates release from prison pending trial or appeal upon depositing security.
  • Bailable offences guarantee the right to bail, as per Section 436 of the CrPC, while non-bailable offences grant discretion to courts or designated police officers, as outlined in Section 437.
  • Justice V R Krishna Iyer in the case of State of Rajasthan v. Balchand (1977) held that the basic rule is bail, not jail. It referred to a concept which is ‘Bail is a Right and Jail is an exception”.
• Types of Bail in India:
  • Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
  • Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
  • Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.
  • The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country, or reporting to the police station regularly.

What is Legal Provision of Interim Bail in CrPC?

Section 438

• This section contains directions for grant of bail to person apprehending arrest. It states that-

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:---

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

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.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days' notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, 1860 (IPC).

What are the Conditions for Interim Bail?

• This Section is made applicable only in the event of there being an apprehension of arrest.
• It envisages for seeking pre-arrest bail is that the applicant must have reason to believe that he may be arrested on accusation of having committed a non-bailable offence.

What is the Significance of Section 438 of CrPC?

• The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.
• Section 438 of CrPC is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.

What are the Landmark Case Laws of Section 438 of CrPC?

• In the case of Badresh Bipinbai Seth v. State of Gujarat (2015), the Supreme Court held that Section 438 of CrPC should be interpreted liberally in light of Article 21 of the Constitution of India, 1950 which grants freedom of life and personal liberty.
• In the case of Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court held that the anticipatory bails should not be time-bound.

Conclusion

The Supreme Court's decision to grant interim bail to Chief Minister of Delhi upholds democratic principles by ensuring his participation in the elections. While allegations against him require fair adjudication, his continued incarceration could unduly influence the poll process. This order exemplifies judicial wisdom in prioritizing free and fair elections, which are vital for India's vibrant democracy.