NATTURASU AND ORS V. THE STATE

CASE ANALYSIS OF NATTURASU AND ORS V. THE STATE

Facts of the case. 

On 21st January 1996, Chellaih Thevar gave a complaint to the police (hereinafter referred to as “Respondent”), under the Section 155 of the CrPC, that his daughter Isakki Amaal had been kidnapped. Chellaih Thevar had accused Natturasu and others (hereinafter referred to as “Petitioners”) for kidnapping his daughter on 20th January 1996. The Respondent had registered a case against the Petitioners under the following offences under the Indian Penal Code:

Section 147 – Punishment for rioting. 

Section 148 – Rioting, armed with deadly weapon. 

Section 448 – Punishment for house-trespass. 

Section 366(A) – Kidnapping, abducting or inducing woman to compel her marriage, etc. 

Isakki Amaal had been rescued and was handed back to her parents. The Petitioners had filed an application for the granting of Anticipatory Bail under Section 438 of CrPC before the Court of Session. On 27th June 1997, the Court of Session had dismissed the application only on the ground that the charge-sheet has already been filed and a non-bailable warrant had been issued against the Petitioners on 19th June 1997. The Petitioners preferred an appeal and challenged the order of the Court of Session before the High Court of Madras.  

The Madras High Court considered the following facts: 

⮚ The investigation by the Respondent was still under process. ⮚ The co-accused had already been released on bail. 

⮚ The victim Isakki Amaal had been rescued and was returned to her family. ⮚ The Petitioners were Permanent Residents of the Tirunelveli Taluk Since the charge-sheet had been filed and a warrant of arrest was issued, the Petitioners do have an apprehension of being arrested.  

Therefore, the Madras High Court granted an Anticipatory Bail to the Petitioners. In the event of the arrest of the Petitioners, they shall be released on bail. Under Section 439 of CrPC, it also laid down certain conditions on the Petitioners. They shall be released on bail after each one of them executes a bond for a sum of Rs. 500/- (Rupees Five Hundred), a surety for each to a like sum as to the satisfaction of the Judicial Magistrate-VI, Tirunelveli and a further condition that they shall be present in the concerned court as and when required. In this case, known as Natturasu and Ors. vs The State1, the High Madras High Court dealt with various questions that arise before the Courts while granting Anticipatory Bail under Section 438 of CrPC. 

Issues raised. 

1. What is the meaning of Anticipatory bail? 

2. What is the scope of Section 438 CrPC? 

3. What is the period of duration of anticipatory bail? 

4. What is the stage at which Section 438, CrPC could be invoked? 

5.What is meant by the accusation?

6.What is the meaning of the word “arrest”? 

7. By whom arrest could be affected? 

ARGUMENTS 

In Nagendra v. King Emperor AIR 1924 Cal 476 : 1924 (25) Cri LJ 732, it is held that the object of the  bail is to secure the attendance of the accused at the time of the trial and that the proper test to be  applied for the solution of the question whether bail should be granted or not is whether it is probable  that the party will appear to take his trial. Under Section 441 of Cr.P.C., when a person is released on  bail, he is asked to execute a bond with sureties that such person shall appear before the Court to answer  the charge levelled against him. 

In G. Narasimhulu v. Public Prosecutor the Apex Court held that the requirement for bail is merely to  secure the attendance of the prisoner for trial and that it is the duty of the Court to admit the accused to  bail, wherever practical, unless there are strong grounds for supposing that such persons would not  appear to take the trial. 

Under Section 441 of Cr.P.C., when a person is released on bail, he is asked to execute a bond with  sureties that such person shall appear before the Court to answer the charge levelled against him. Thus,  it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused  person who enjoys freedom is in a much better position to look after his case and to properly defend  himself in, the trial than if he is in custody. 

In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form  of bail to enable him to establish his innocence at the trial. 

In other words, ‘bail’ connotes the process of procuring the release of an accused charged with a certain  offence by ensuring his future attendance in the Court for trial and compelling him to remain within the  jurisdiction of the Court. 

The purpose of bailing out before the trial is to secure the presence of the accused when required, when  there is the hardship of incarceration, before the guilt has been proved, while the presumption of  innocence is to be given effect to. 

The act of arrest directly affects the freedom of movement of a person arrested. An order of bail gives  back the accused that freedom, on condition that he would appear to take his trial. 

The effect of granting bail is, accordingly, not to set the prisoner free from jail or custody, but to release  him from the custody of law and to entrust him to the custody of law and to entrust him to the custody  of his sureties who are bound to produce him to appear at his trial. 

So, the very same analogy, as indicated earlier, would be applicable to the anticipatory bail also. 

Section 438(2)(iv) (Anticipatory Bail) would provide for the imposition of condition as incorporated  under Sub-section (3) of Section 437, Cr.P.C. 

Section 437(3) (Bail) enjoins that the Court may impose any condition which the Court considers necessary  in order to ensure that such person shall attend in accordance with the conditions of the bond executed  under this Chapter.

Section 441 which falls under this Chapter says that the bail bond executed by the accused shall bind  the person released on bail to appear before the Court to answer the charge. Thus, the meaning of Bail or  Anticipatory bail is the release of an accused from custody to ensure his presence in the trial. 

Now, let us go to the scope of Section 438 of Cr.P.C. 

The Cr.P.C. 1898 did not contain any specific provision corresponding to the present Section 438. The  need for amendment to the Cr.P.C. was felt for a long time as expressed by the various High Courts.  The suggestions were made by different quarters in order to make the Code more effective. 

The Law Commission of India in its 41st Report, pointed out the necessity of introducing a provision  in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”. The  suggestion is as follows :- 

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to  implicate their rivals in false cases for the purpose of disgracing them, or for other purposes by getting  them detained in jail for some days…. Apart from false cases, where there are reasonable grounds for  holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty  while on bail, there seems no justification to require him first to submit to custody, remain in prison for  some days and then apply for bail…. We are further of the view that this special power should be  conferred only on the High Court and the Court of Session, and that the order should take effect at the  time of arrest or thereafter. 

The Law Commission further observed that there is no necessity to lay down in the statute certain  conditions as provided in Section 437(1), under which alone anticipatory bail could be granted and that  the question of granting such anticipatory bail should be left “to the discretion of the Court” and ought  not to be fettered by the statutory provision itself, since the discretion was being conferred upon  superior courts which were expected to exercise it judicially. 

Thus, the legislature conferred a wide discretion on the High Court and the Court of Session, because  its intention is to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in  the nature of anticipatory bail. That is the reason why Section 438(1) provides the language that the  High Court or the Court of Session “may, if it thinks fit” direct that the accused be released on bail,  whereas these words are absent in Sections 437 and 439 Cr. P.C. 

In the light of the above observation, the Constitutional Bench of the Apex Court would hold  in Gurbaksh Singh v. State of Punjab in the following words : 

Therefore, even if we were to frame a ‘Code for the grant of anticipatory bail’, which really is the  business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In  which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion…. The concern of the Courts generally is to preserve their discretion without meaning to abuse it. It will be  stange if we exhibit concern to stultify the discretion conferred upon the Courts by law. 

Thus, it is crystal clear that the Apex Court in the above judgment, in the light of the object of the  introduction of Section 438 and the observation of Law Commission relating to the necessity to give a  free hand to the higher Courts in the matter of exercising their jurisdiction in granting anticipatory bail,  has observed that there cannot be imposition of unnecessary restrictions on the scope of Section 438,  when no such restrictions have been imposed by the legislature in terms of that Section. 

The Apex Court would go to the extent of observing that the imposition of an unreasonable limitation  on the scope of Section 438 or on the individual’s right to seek for anticipatory bail by judicial decision,  irrespective of whether it is imposed by the legislation would be violative of Article 21.

According to the above Bench, Section 438 is a procedural provision which is concerned with the  personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he  is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he  seeks bail. 

It is further observed, referring to the judgment in Emperor v. H.L. Hutchinson AIR 1931 All 356 :  1931 (32) Cri LJ 1271, that it was very unwise to make an attempt to lay down any particular rule which  will bind the High Court, having regard to the fact that the legislature itself left the judicial discretion of  the Court unfettered. 

While referring about the ‘judicial discretion’ to be exercised by the High Court and the Court of  Session, the Apex Court would observe as follows :- 

We would, therefore, prefer to leave the High Court and the Court of Session to exercise their  jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training  and experience, they are ideally suited to do. The ends of justice will be better served by trusting these  Courts to act objectively and in consonance with principles governing the grant of bail which are  recognised over the years, than by divesting them of their discretion which the legislature has conferred  upon them, by laying down inflexible rules of general application. 

. Merely because wide powers conferred to the higher Courts, Section 438(1) cannot be invoked on the  basis of general allegation. Though it is a device to secure the individual’s liberty, the Courts should not  allow it to be used as a passport to the commission of crimes or as a shield against all kinds of  accusations. However, if an application for anticipatory bail is made to the High Court or the Court of  Session, the Apex Court puts a mandate on those Courts to apply their own mind to the question and  decide whether a case has been made out for granting such a relief and that it could not leave the  question for the decision of the Magistrate concerned on the bail application under Section 437 of the  Code, as and when an occasion arises because such a course would defeat the very object of Section 438. 

The thorough reading of the judgment of the Constitutional Bench would show that though the  powers are very wide, the judicial discretion must be properly exercised after proper application of mind  to decide whether it is a fit case for granting anticipatory bail or not. 

. 

The Judgement. 

The judgement passed by the Madras High Court in this case i.e. Natturasu and Ors. vs The State, in which the Petitioner was granted Anticipatory bail under Section 438 of CrPC. The judgement maintained and safeguarded the rights of the Petitioner as an accused remains innocent unless he is proven guilty in a Court of justice. Initially, the Session Court had denied 

anticipatory bail to the Petitioner on the ground that the charge sheet had already been filed and the warrant had been issued. The Madras High Court carefully observed the circumstances of the case and corrected the mistake made by the Sessions Court.  

The Supreme Court of India has in several cases held that the object of anticipatory bail is to protect the freedom and liberty of individuals from getting arrested at the instance of some dishonest influential people. Anticipatory bail also helps an accused in defending himself more efficiently than he would by being in custody. Whenever an individual has an apprehension of being arrested on an accusation of a non-bailable offence, he may approach the Sessions Court or the High Court and seek the relief of Anticipatory bail irrespective of the stage in which the case is currently in. 

In this excellent judgement, the Madras High Court has perfectly exercised the wide and enormous discretionary powers imparted to the Courts by the Legislature. Further, it also laid down certain conditions on the Petitioner under Section 439 thereby ensuring that the Petitioner appears before the Session Court in the trial. This judgement also answered several questions that  always arose concerning anticipatory bail and thereby cleared several ambiguities. 

Refrence: 

1. The code of criminal procedure By S.N MISHRA 

2. WWW.indiankanoon.com 

THE ARTICLE IS WRITTEN BY ANIKA SHAFI DAR OF VITASTA LAW COLLEGE ,INTERN AT LEGAL VIDHIYA.

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