Criminal law
P.S.Subbaraman
(Querist) 04 March 2010
This query is : Resolved
Even when an accused gets an anticipatory bail from Sessions Court or High Court . The accused is asked to squat on the floor of the court for surrendering and released on bail after satisfying the Magistrate on sureties . Is the practice correct ?
Raj Kumar Makkad
(Expert) 04 March 2010
Yes. This practice is absolutely correct as per Criminal Procedure Code. Otherwise also, supremacy of law should prevail at any cost and such accused persons should bw before law.
Guest
(Expert) 04 March 2010
its not permissible in any law that accused forced to squat on the floor of the court.
TIME FRAME IN WHICH THE BAIL IS VALID
Anticipatory Bail is sometimes termed as a provisional relief till a magistrate whotakes cognisance of the offence awards a regular bail. The Hon’ble Supreme Court inSajaludddin Abdul Samad Shaikh vs. State of Maharashtra22, held that the order under s.438 must be of limited duration only and ordinarily on the expiry of that duration,the court granting anticipatory bail must leave it to the regular court to deal with thematter on appreciation of evidence placed before it after the investigation has madeprogress on the charge-sheet submitted. The essence of the judgment is thatanticipatory bail must be granted only till the time challan is filed. 221995 INDLAW SC 1866, AIR 1996 SC 1042 : 1996 Cri LJ 1368.
In K. L. Verma vs. State23 it was held that such an order may not be underoperation till the end of the trial as the regular court may not be bypassed. The courtobserved that the limited duration of the operation of an order of anticipatory bailmust be determined having regard to the facts of the case and the need to give theaccused sufficient time to move the regular court and to give the regular courtsufficient time to decide on the bail application, This interpretation stems from theview that at the time of granting anticipatory bail the investigation process is at aprimitive stage and passing an order putting the accused at large for the entire periodof trial might prejudice the investigation process. It is submitted that though this is avalid concern, the view adopted by the Supreme Court is incorrect and against thelegislative framework.First of all, s. 438(3), in categorical terms mentions that once the order unders. 438(1) is passed, there will be absolute restraint on the power to detain the accusedin custody and the magistrate will issue a bailable warrant in conformity with thedirection of the court granting anticipatory bail. It would be fallacious to treat suchan order as a temporary order until the magistrate who is trying the offence ratifies it.Apart from the fact that the provision is totally silent on such ratification, evenreading it into provision would be against the express words of s. 438(3), whichenvisage no role for the trying magistrate as regards the order of anticipatory bail,which is binding on him in toto. Moreover the power under s. 438(1) is discretionaryand vested In the higher courts because it is under a duty to judicially determinewhether there are possibilities of the accused evading arrest if the investigationprocess so warrants, The higher courts may not evade the explicit provision anddelegate the discretionary power to a lower court by granting an interim bail. TheCode of Criminal Procedure, 1973, s. 438 enjoins the high court or the court of session to pass an order of anticipatory bail, valid till the end of the trial or till it is
cancelled depending on whatever material it has before itself at the time of passingthe order. In case, there is new material or evidence that is discovered in the courseof investigation which shows that the accused must be in custody, the prosecution isnot precluded from moving an application of cancellation of the order. Though neither s. 438, nor any other section of the Code makes any clear provision as to whether the order granting anticipatory bail may be cancelled.However, it has been held that when s. 438 permits the making of an order and theorder is made granting anticipatory bail, it is implicit that the court making such anorder is entitled upon appropriate consideration to cancel or recall the same
