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– Supreme Court Guidelines on Anticipatory Bail
Date: August 12, 2023 | Author: AA & Co. Advocates
Recently, on 31 July 2023, a division bench of the Supreme Court of India (S. Ravindra Bhat and Aravind Kumar) in a criminal appeal (Md. Asfak Alam vs. State of Jharkhand and Anr (2023) SCCOnline SC 892) directed all the courts to strictly follow the law laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469 and further reiterated the directions contained thereunder.
In an endeavour to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically, the guidelines set out in Arnesh Kumar’s case are as follows:
1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A Indian Penal Code (IPC) or Section 4 of the Dowry Prohibition Act, 1961, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Code of Criminal Procedure (CrPC)
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii) CrPC
3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention
4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing
6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The bench further directed that the High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing with various offences. Likewise, the Director General of Police in all States (DGPs) shall ensure that strict instructions in terms of above directions are issued. Both the High Courts and the DGPs of all States shall ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from the date of this judgement.
The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses, the likelihood of the accused to flee from justice and other such considerations.