Anticipatory Bail

An application for bail is made when the accused is arrested and seeks relief to be released from the custody on furnishing some security. Anticipatory bail is, however, a different situation, which is the person making an application for bail even before being arrested. Section 438 of the Criminal procedure code was added by the amendment act of 2005 to the act. This amendment was made on the recommendation of the 41^st Law Commission Report.

WHAT IS ANTICIPATORY BAIL?

Section 438 deals with anticipatory bail which is an application filed by a person who apprehends to be arrested with regard to a non-bailable offense. Such an application after being approved protects the person from arrest at the sole discretion of the court. It protects the person from being arrested in a particular case. However, such protection cannot be passed for an unlimited time, if so, it is liable to be set aside.

Purpose:  The purpose of having such a provision of bail before the arrest is to protect the accused from unnecessary disgrace and harassment in case, the accusation is false. It is a temporary relief granted to a person. No humiliation should be caused to the person at the same time preserving the faith of the people in the judicial system.

In the case of Balchand Jain v. State of Madhya Pradesh[1], the court highlighted that the power has to be exercised carefully and only in exceptional cases.

WHEN CAN ONE APPLY FOR ANTICIPATORY BAIL?

The case of Adri Dharam Das v State of West Bengal,[2] explained that an interim order protecting from arrest would interfere with the investigation and therefore the expression used is “reason to believe” is used to indicate that there should be an apprehension of arrest based on reasonable grounds. Such grounds must be capable of being examined. Mere fear of the applicant is not sufficient for such an application to be made.

WHEN CAN ONE GET ANTICIPATORY BAIL?

While granting anticipatory bail, the court must take into consideration the personal liberty of the applicant on one side and the interest of investigation on the other side as it affects the interest of the public at large.

The following factors are taken into consideration, as laid down in the case of Mohammad Masood v State of Karnataka[3]:

1. The nature and seriousness of the offense;
2. The severity of the offence;
3. Nature of the evidence collected so far;
4. Character and behavior of the accused;
5. The probability that the accused might go absconding;
6. Probability and possibility of the repetition of such crime;
7. The likelihood of tampering and influencing the pieces of evidence and the witnesses respectively;
8. The interest of the people and the state.

After considering the factors, if the court is satisfied that such liberty shall not be misused and all the due process of law shall be followed, then it will grant an application of anticipatory bail. After having an anticipatory bail, the person can be released immediately after arrest.

POWER OF THE COURT

An applicant can make an application in the court of session and being unsuccessful there can move to the High Court for the same. Under the section, the courts have a wide discretionary power. There can be no strict universal application of these rules. Thus, it varies based on the facts of the case and remains unguided. The court on an application received by the prosecution can also cancel the bail and order for the arrest of the person, i.e. cancellation of bail.

The court ought to give a reason for its discretion of granting or not granting such bail. The guidelines, in this case, was reiterated, when the high court exercises power without reason, the Apex court needs to interfere to avoid any failure of justice.

The validity of anticipatory bail: An anticipatory bail is not under the blanket jacket of release for an indefinite period. Anticipatory bail becomes effective at the very moment when a person is arrested, and the person is free from the arrest until the bail is canceled. Anticipatory bail validity is from the day the arrest is made to the day till which court grants permission or the day it is canceled.

Application for anticipatory bail for an offense under section 498A: There is no express provision which provides for not granting an interim release from arrest. However, the thing of consideration is the statement of reason which has to be offered. In the case of Raghuvir Saran Agarwal v State of UP[4], the anticipatory bail was granted by the High Court in case of dowry death but was without any statement of reason, the Apex court intervened and set the same aside because the High Court didn’t provide a proper reason.

CONCLUSION

Anticipatory bail is simply aimed to grant protection to the applicant who may be inducted in a false case. This power vested with the court is an extraordinary power and needs to be used cautiously, and the ultimate aim of the judicial system should be to meet the ends of justice and to protect the interest of the people.

[1] AIR 1977 SC 366

[2] AIR 2005 SC 1057

[3] 2002 CrLJ 1760 (HP)

[4] (1998) 8 SCC 617

Major Functionaries under the Code of Criminal Procedure

There are five major functionaries under CrPC

1. Police
2. Prosecutors
3. Court
4. Defense Council
5. Prison Authority and Correctional Services

In this particular article, you’ll be reading about the above-mentioned functionaries, their roles and functions.

POLICE

It is the duty of the central and state governments to provide for the police setup and their organizations. But both the governments have failed in the reorganization of the police setups according to the needs and the changing society. Later in the case of  Prakash Singh vs. Union of India (2006) in which the Supreme Court laid down guidelines for the reorganization of the police.

Role of Police under CrPC

• The role of police starts with writing the information about the crime and registering it as an FIR.
• Either before or after registering FIR, the police have a duty to reach the scene of offense for the purpose of a preliminary investigation, protection of the crime scene, the arrest of the accused or the suspect.
• Duty to take the offense to the cognizance of the court.
• On the arrest of the accused/suspect, it is the duty to produce before the court within 24 hours.
• Duty to investigate into the offense and file the charge-sheet before the court.
• Duty to assist the prosecution and the court in the administration of justice.

PROSECUTOR

This word is defined under S-2 of CrPC it means the prosecutor is an officer appointed by the appropriate government to prosecute the offense in a case. Section 24&25 of CrPC deals with the appointment of prosecutor and their duties.

The appointment shall be by the central/state government, through a recruitment agency, directorate of prosecutions. This agency is the governing body for the prosecutors for the purpose of appointments, transfers, regulating, etc. this directorate is a statutory and is empowered u/s 25(A) of CrPC initiated by the criminal law amendment act 2005.

Kinds of Recruitment of The Prosecutors

There are two kinds of the recruitment process;

• Thorough Exam

There are certain kinds of prosecutors appointed through a recruitment test conducted and appointed at the lower judiciary i.e. in the court of judicial magistrates. The public prosecutors in the lower judiciary are called as assistant public prosecutors Grade I and Grade II (government servants).

• Term Based

There are prosecutors who are appointed in the middle level of the judiciary at the session court/addition courts of sessions and an assistant court of sessions. The appointment of the prosecutors shall be from a panel of advocates prepared by the district collector. The term of the office for such public prosecutors shall be 4-5 years.

COURTS

The setup and organization of criminal courts in India are of 2 types on the basis of the nature of the area i.e. District and Metropolitan areas.

In District

The criminal courts and their setup in district areas in at 3 levels:-

1. At the lower level of the judiciary the courts are called, courts of Judicial Magistrate which are of 3 types:-

• Judicial magistrate first class
• Judicial magistrate second class
• Special magistrate court

2. At the middle level of the judiciary, sessions are the unit and each district may be considered as one session or sessions may consist of two or more districts, the courts at the sessions level includes:-

• Court of sessions(principal court of sessions)
• Additional courts of sessions
• Assistant courts of sessions
• Special courts (designated courts)

3. At the higher level of the judiciary, there are 2 important courts having criminal jurisdiction i.e. high court and Supreme Court.

Though high court and Supreme Court are vested with the jurisdiction in criminal cases, they are only courts of appellate jurisdiction.

Metropolitan areas

The courts at the session’s level are referred and called metropolitan courts and they are of 2 types:-

1. Metropolitan session courts
2. Metropolitan magistrate courts

Chief Judicial Magistrate/Chief Metropolitan Magistrate Supervisory authority or administrative authority of all the magistrate in sessions/division or metropolitan areas.

DEFENSE COUNSEL

In India, we follow the Anglo-Saxon system also called adversarial, under which the state shall be represented by the prosecution and be accused by a defense counsel at is choice and cost. Where the accused is unable to engage a lawyer for his defense counsel for the accused at the cost of the state. Such defense counsel is called a state brief (S-304 CrPC).

PRISON AUTHORITIES AND CORRECTIONAL SERVICES

After the trial and arguments in the criminal cases, it is the time to deliver the judgment by the court the two possibilities of the judgment in a criminal case are correction or acquittal. On the proof of guilt of committing the crime, the accused is liable to be corrected and sentenced with imprisonment or for the default of payment of fine imprison the offender will be sent to the prison. The prison administration authority shall be according to the prison act 1881.

Section 144 IPC The Code of Criminal Procedure

The Code of Criminal Procedure (CrPC ) is the principal enactment on the procedure for administration of substantive criminal law in India. It was established in 1973 and came into power on 1 April 1974.

It gives the machinery to the examination of crime, apprehension of suspected criminals, gathering of evidence, assurance of guilt or innocence of the accused individual and the determination of punishment of the guilty. Furthermore, it additionally deals with open public nuisance, prevention of offences and maintenance of wife, child, and parents.

What is Section 144 IPC

Section 144 of the Criminal Code Procedure states the power to issue an order in dire instances of nuisance or apprehended risk.

As indicated by 141-149 of the Indian Penal Code (IPC), the maximum punishment for engaging for taking part in rioting is rigorous imprisonment for 3 years or/and fine. Each individual from an unlawful assembly can be considered responsible for wrongdoing committed by the group. Blocking an officer attempting to disperse an unlawful gathering may pull in further punishment.

In about 1861, Officer Raj-Ratna E.F. Deboo IPS were the creator and draftsman of section 144, which lessened by and large crime in that time in the state of Baroda. He was perceived for his drive and granted a gold medal by the Maharaja Gaekwad of Baroda for setting up Section 144 and lessening by and large crime rate.

The section was imposed for the first time in 1861 by the British Raj, and thereafter turned into a critical instrument to stop every single nationalist protest amid the Indian freedom movement, and its utilization in independent India stays controversial as not much has changed. Usually used to avert freedom of expression by quiet protests or demonstrations, even the law does not utilize the terms, however, it mentions “riot”. Section 144 applies amid mobs and election continuing after the announcement of the election.

144 Section Rules and Conditions

(1) In situations where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or some other Executive Magistrate exceptionally enabled by the State Government for this sake, there is adequate ground for continuing under this section and prompt prevention or speedy remedy is alluring, such Magistrate may, by a written order expressing the material facts of the case and served in the way given by section 134, guide any individual to abstain from a specific act or to take certain order concerning certain property in his ownership or under his management, if such Magistrate thinks about that such course is probably going to prevent, or will in general avert, deterrent, inconvenience or damage to any individual lawfully employed, or threat to human life, health or security, or disturbance of public peacefulness, or an uproar, or an affray.

(2) An order under this section may, in instances of crisis or in situations where the conditions don’t concede to the serving in due time of a notice upon the individual against whom the order is coordinated, be passed ex parte.

(3) An order under this section might be coordinated to a specific individual, or to people dwelling in a specific place or area, or to the general population by and large when frequenting or visiting a specific place or area.

(4) No order under this section will stay in power for over two months from the creation thereof: Provided that, if the State Government thinks so to improve the situation preventing peril to human life, health or security or for keeping an uproar or any affray, it might, by notification, coordinate that an order made by a Magistrate under this section will stay in force for such further period not surpassing a half year from the date on which the order made by the Magistrate would have, yet for such order, lapsed, as it might determine in the said notification.

(5) Any Magistrate may, either on his own or on the use of any individual aggrieved, repeal or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own or on the use of any individual aggrieved, repeal or change any order made by it under the stipulation to subsection (4).

(7) Where an application under subsection (5) or subsection (6) is received, the Magistrate, or the State Government, by and large, will bear to the applicant an early chance of showing up before him or it, either face to face or by pleader and indicating cause against the order; and if the Magistrate or the State Government, all things considered, rejects the application completely or to a limited extent, he or it will record in writing the reasons behind so doing.

Who enforces Section 144 IPC

The orders for Imposing section 144 have been given to Executive Magistrate when there is a crisis situation.

Limitations enforced when Sec 144 IPC is imposed

• The urgency of the circumstance and the power is to be utilized for keeping up public harmony and peace.
• Private rights might be temporarily superseded when there is a contention between public interest and private rights
• Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a procedure under section 144 of Criminal Procedure Code.

How the requests of Sec 144 should be passed?

It must be in written form. Prior to enforcing Section 144, Executive Magistrate needs to guarantee whether there is a need to enforce section 144. For this, he/she have to request material facts.

Duration of Order

• Section 144 would be valid just for a time of two months.
• The state government can expand the validity for two months and maximum up to a half year.
• It can be withdrawn any time of time if the circumstance turns normal.

Section 144 IPC at Kerala

The Pathanamthitta district authority in Kerala has forced Section 144 of the CrPC in Sabarimala and close-by regions ahead of the Chithira Avittom Pooja. The hill shrine in Sabarimala was opened for devotees on November 5 and 6. Prohibitory orders will be set up until November 26.
In the wake of violent protest amid the last monthly pooja, the state police have likewise chosen to increase deployment of forces in Sabarimala area.
Then again, state police keep on taking action against protesters in Pamba and Nilakkal. As per the most recent data, 3,701 individuals have been captured in 543 cases by the police.

At the point when the temple was opened for devotees, at least five ladies attempted to visit the main place of worship. In any case, owing to huge protests at the temple and the police’s failure to give adequate security, the ladies couldn’t enter the shrine.

In conclusion, the article aimed at discovering all the aspects of Section 144 of the CrPC. This Section can be misused at times for political gains and can restrain the freedom of movement of people. Therefore, this section before being imposed should be deliberated upon and if imposed, it should be done with the utmost care and precision.

Powers of police under Code of Criminal Procedure

Powers of Police are very wide and are based on two main functions of Police. These functions are Maintaining of Law and Order and Investigation of illegal activities. The Police Act defines Police as an instrument for prevention and detection of Crime.[i] The Police define most of its powers from the Code of Criminal Procedure, 1973 and the Police Act, 1861. Following are some of the Powers of Police;

Powers of Police to Investigate

The Investigation of Police starts when;

• When someone lodges an FIR(First Information Report).[ii]
• When a Police officer suspects commission of a cognizable offense.[iii]
• Whenever a competent magistrate orders the Police.[iv]

The Police have the power to investigate Cognizable as well as Non-Cognizable offenses.[v] Police officers can investigate Cognizable offenses without the magistrate’s orders. If a Police officer suspects the commission of a cognizable offense, he has the power to investigate under s 157 without the filing of FIR.[vi] Police also have the power to require the presence of witnesses in order to pursue an investigation. Males under 15 years and over 60 years of age, females, or mentally/physically disabled persons shall not be required to attend as a witness except for their residences.[vii] Police can examine these witnesses as well.[viii] Police also has the power to conduct a medical examination of rape victims.[ix]

Powers of Police to Arrest

Police have the power to arrest the persons as well. The Police can make the arrests for both Cognizable as well as Non-cognizable offenses. For non-cognizable offenses, a Police officer has no authority to arrest a person without warrant. However, a Police officer can arrest a person without a warrant for Cognizable offenses.[x] In case of adequate grounds, the magistrate may extend the period of detention to 15 days. Also, the Police have the power to release the accused in case of lack of evidence.[xi]

Power of Preventive Arrest

The preventive arrest is the detaining of a person who is likely to commit an offense. It is a highly debated topic all over the world. In India, s 107 and s 151 of CrPC give the powers of Police for preventive detention mainly. In case an Executive Magistrate recieves information that a person is likely to commit a breach of peace, he may order him to show cause. The magistrate may also order him to execute a bond to keep peace in such period.[xii] It is the duty of the Police to prevent Cognizable offenses.[xiii] Also, the Police have the power to arrest a person without a warrant or an order from the magistrate in cases they have knowledge that such person is planning to commit a cognizable offense.[xiv]

Though, the Police can only make the arrest if it is the only way to prevent such offense. The idea behind these provisions is to avert the commission of an offense. The constitutional validity of these Sections has always been in controversy. Many persons have filed petitions questioning the validity of the provisions of the preventive arrest.[xv] In a case, certain landowners of MP were protesting after being affected by the Sardar Sarovar Project. Even though they posed no threat to commit cognizable offenses but were still beaten up and arrested. The Court held that this was in violation of Article 21 of the Constitution.[xvi] However, s 151 already mentions the grounds of the arrests. Also, preventive arrest laws are given legal recognition under the Constitution of India.[xvii] So, these provisions cannot be said to be in violation of Articles 21 and 22.[xviii]

Read Also: Everything You Need to Know About Criminal Law In India

Abuse of Powers of Police under Preventive Arrest

There have been many instances when these powers have been misused by the Police as well. This was because of the arbitrary and unjust use of these powers. In a case, the persons arrested under s 107 and 151 were not given a chance to be heard for 6 days. The case was tried without any scrutiny under issue. And, no order was issued under s 111 of the CrPC. The Karnataka HC held that this process was arbitrary and unjust as the Police didn’t follow proper procedure.[xix]

In the case of Ahmed Noormohmed Bhatti v State of Gujarat[xx], it was suggested that the guidelines given for the detainees must be followed in cases of Preventive arrests as well. The Court gave these guidelines in the case of D K Basu v State of West Bengal. The Court also held that a provision is not unreasonable or unconstitutional because of arbitrary exercise of it by the authorities. Proper scrutiny of each case is to be done to determine whether the arrest is unconstitutional or not.

Conclusion

Police is an important part of a healthy society. We always remember Police first when we are in trouble or under a threat. The powers of the Police are invested in them to have a smooth and healthy society. But, they ultimately have a duty to protects the rights and interests of the individuals. Due to this, they must use their powers with the utmost care and caution. The author notes that there are many instances where the Police have misused these provisions and there should be a proper check on these practices.

[i] The Police Act 1861, preamble.

[ii] Code of Criminal Procedure 1973, s 154.

[iii] ibid, s 157(1), 156(1).

[iv] Code of Criminal Procedure 1973, s 156(3).

[v] ibid, s 155, 156.

[vi] State of Maharashtra v Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC 577.

[vii] Code of Criminal Procedure 1973, s 160.

[viii] ibid, s 161.

[ix] Code of Criminal Procedure 1973, s 164A.

[x] ibid, s 2(c), 2(l).

[xi] Code of Criminal Procedure 1973, s 169.

[xii] ibid, s 107.

[xiii] Code of Criminal Procedure 1973, s 149.

[xiv] ibid, s 151.

[xv] ‘Role of Police and its power to Investigate’ (Lawnn, 14 February 2017) <https://lawnn.com/role-police-power-investigate/> accessed 12 December 2018.

[xvi] Medha Patkar v State (2011) 8 SCC 55.

[xvii] Constitution of India 1950, a 22.

[xviii] Ahmed Noormohmed Bhatti v State of Gujarat (1999) SCC (Cri) 1014.

[xix] Sathi Sundaresh v The State PSI of Moodigere 2007 (4) CrLJ 649.

[xx] Supra Note xviii.

Seven Questions About Caught Drunken Driving? All You Should Answer Truthfully

Introduction

Alcoholic beverages have been increasingly used in the societies which are creating positive and negative; short-term long term, social, medical, and cultural impact. Like other western countries, the laws in India also make driving and drinking a punishable offense. The only exception can be having BAC (Blood Alcohol Content) within the permissible limit.

It is a well-known fact of the number of road accidents which occur everywhere due to reasons like drunkenness, driver’s fault, rash, and negligent driving, etc. In the case of The State of Tamil Nadu v K. Balu and Anr[1], the judgment highlighted the number of road accidents due to the influence of alcohol/drugs is 16, 298 for the year 2015, i.e., 3.3 percent of the total number of road accidents for the year.

Unquestionably, the statistics documented under the category of drunk driving is under-reported so as not to tamper the right of the victim to receive compensation. So, the figure recorded, and the figure on record has a significant difference.[2]

Read Also: Underage? Still Drinking Alcohol!

Permissible limit

It is pertinent to know what amounts to drunken driving and what is the permissible limit. The BAC permissible in India is 0.03%, i.e., 30 mg per 100 ml of blood. The BAC permissible varies from country to country. For example, in countries like Pakistan Alcohol is completely banned, China has BAC as 0.02%, and the UK and Canada have permissible BAS as 0.08%

In the case of Alister Anthony Pareira v State of Maharashtra[3], the accused was charged with causing the death of seven people and injuries to eight people who were asleep on the footpath of Carter Road, Bandra (West).  Upon Medical examination of the accused, the content of alcohol was 0.1125 w/v of Ethyl Alcohol. The High Court convicted the accused of Maharashtra, the basis of a conviction being his drunken state. But nobody cross-examined that drunken state which was stoutly argued upon on behalf of the accused at the stage of appeal. But the High Court ultimately dismissed the appeal because the BAC was higher than permissible, and no examination or cross-examination can render the fact void.

All the cases of Drunk Driving are registered under Driving under Influence (DUI) cases. On the eve of the new year 2019, Hyderabad itself registered as high as 2499 cases of DUI during checking on the occasion, and 873 cases were recorded by the Pune Police Stations, Mumbai 455 cases and Delhi 509 cases.[4]

How to identify intoxication

The case of Bachubhai Hassanalli Karyani v State of Maharashtra[5] is an important highlight because it places reliance on medical evidence and not on mere physical examination. The accused charged with rash and negligent driving under the state of alcohol. His state of alcohol contended only based on the opinion of the Doctor who conducted the examination. His breath was smelling of alcohol, gait unsteady incoherent speech, and dilated pupils. The accused was not subjected to the urine test. The blood samples were collected, but its report was never produced before the prosecution. The notion of accused being in a drunken state was denied by the court to meet the ends of justice. Thus the intoxication should be identified through breath analyzer, blood test, and urine test.

Is breath analyzer the only way to prove that a person is drunk?

As per Section 185 of the Motor Vehicle Act, 1988, which indicates a permissible limit BAC of 30 mg%, “in a test by a breath analyzer.” The wording of the section is clear the necessity of the test by breath analyzer. The police officer may also take the person to a nearby place to conduct breath and blood tests.

In the case of State Tr.P.S Lodhi Colony, New Delhi v Sanjeev Nanda[6], where the accused was held guilty under Section 85 of Indian penal Code and Section 185(1) of the M.V Act, 1988 to show intoxication. It was contended on behalf of the Accused that since breath analyzer test is the test statutorily recognized for drunken driving, which was not conducted for the Accused, no reliance can be placed on the state of intoxication of the accused.

Punishment and fine: Section 185 and 188 of the MV Act

If the BAC is 30 mg per 100 ml of Blood, then does not amount to any offense. If BAC is within 30mg-60mg per 100 ml of blood, it shall attract imprisonment up to 6 months or fine up to Rs. 2000 or both.

If BAC is ranging from 60mg-150mg per 100 ml of Blood, imprisonment for 1 year or fine of Rs. 4000 or both can be imposed. Repeating of offense within a period of three years will be punishable with imprisonment, which can extend up to 3 years and/or fine Rs. 8000.

If the BAC is above 150 mg per 100 ml of blood, then it attracts imprisonment of 2 years and/or fine of Rs. 5000. Repeating this offense will attract a penalty of Rs. 10000, cancellation of license and jail term.

Way Forward

The State and center have been working progressively towards reducing the number of causalities caused due to drunkenness. The polices implemented by the union government of ban of Alcohol within 500 meters of the National Highways, is a measure to curtail down the number of road accidents.

In action taken by Hyderabad in 2016, where it is required by the bar authorities to make sure a pool of cabs is available near the bar to take home drunken people. This action was initiated after Kolkata took stern action when a fatal accident of an actress was reported.[7]

As per the recommendation of the World Health organization, all member governments should reduce the per capita consumption, which can be done by reducing the availability of such alcoholic beverages. This action can be taken in lieu of Article 47 of the Constitution of India.[8]

Conclusion

A zero-tolerance policy must be devised and enforced for the proper clarification of the intent of the parliament. Identifying the places most vulnerable and setting up proper checkpoints have help to reduce the number of accidents, but the problem is yet to be solved from its very roots. The permissible limit remains 0.03% and should be abided by not to get caught by the police.

[1] Civil appeal Nos .12164-12166 of 2016

[2] R.N. Mathur v State (Finance Department)

[3] Criminal Appeal Nos. 1318-20 of 2007

[4] https://www.business-standard.com/article/current-affairs/drunk-driving-cases-huge-drop-on-new-year-s-eve-2000-booked-pan-india-119010300133_1.html

[5] Criminal Appeal No. 183 of 1970

[6] S.L.P. (Crl.) No.3292 of 2010

[7] https://www.thebetterindia.com/100812/india-drunk-driving-efforts-initiatives-world-lessons/

[8] https://www.alcoholwebindia.in/content/regulation-legislation