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PROVISIONS RELATED TO ARREST UNDER CRPC (Part1)

June 20, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what an arrest constitutes can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.

All you need to know about Preventive Arrest Laws in India - iPleaders If broadly characterized arrest is of two types-

Arrest made in pursuance with a warrant issued by the magistrate.
Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Section 41 says the police officer has to be satisfied that such arrest is necessary:

To prevent such person from further committing such offence
For purposes of investigation
Prevent the person from causing evidence to disappear.

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such an arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains when a person can be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. Section 41A – gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested. This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above.

Section 41B – enjoins that while making an arrest the police officer shall: –

a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
b) prepare a memo of arrest which shall be:
Attested by one family member or member of the society.
counter signed by the accused.
This evidently is in terms of Article 20/21 which insulates a person from

arbitrary arrest.

Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.

Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence.

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if the true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct any person in his presence, within his local jurisdiction of whom he is competent to arrest at that time and in the circumstances to arrest.

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).

Provisions related to arrest of women

Section 46(1) There should be a female officer to arrest a female.

Section 46(4) prescribes that no women shall be arrested after sunset and before sunrise, unless in exceptional cases, and female officers shall make the arrest in exceptional cases with permission of the Judicial magistrate.

Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.

Section 50(A)(1) makes it obligatory for the police officer making the arrest to

immediately inform the arrestee’s friends, relatives or such other persons about the place

where the arrested person is being detained and inform the arrested person of such

rights. Entries of all the arrests shall be kept at the police station.

Section 50(2) says “the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station”.

Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.

Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production bef

ore the magistrate.

Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.

Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.

Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e., that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.

Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.

Section 47 of CrPC provides for the search of a place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise.

But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process.

Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful.

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC. However, there is a practice of detaining the person in isolation due to Covid -19, and the duration is not calculated towards 24 hours; which in the eyes of the author bad; because if a person is required to be produced before magistrate in 24 hours, then he can be so produced even through video conferencing, without having to produce him personally. Therefore, compromise with the constitutional provisions should not be taken lightly by the courts.

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

ARREST WITH WARRANT

Form of warrant of arrest and duration.—

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

Power to direct security to be taken.—

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.

Warrants to whom directed.—

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

Warrant may be directed to any person.—

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

RIGHT TO LEGAL REPRESENTATION

The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.

In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the “seriousness of the offence and the urgency of the situation” may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – “the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced”.

Moreover, mere representation by a legal aid lawyer, without ensuring whether the accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of the Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely “cosmetic”.

Two paragraphs from the judgment are worthy of being quoted here : “Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority (“NALSA‟), the statutory body under the Legal Services Authorities Act, 1987(LSAA), was shown representing the person arrested, i.e., the present Petitioner. However, the Magistrate does not appear to have asked the arrested person, as mandated by Article 22 (1) of the Constitution, whether he was informed about the grounds of arrest and whether he wishes to consult and be defended by a legal practitioner of his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand”. “There is no mention of the legal aid lawyer having made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in the true spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody.

GUIDELINES FOR INTER-STATE ARREST

In Sandeep Kumar v State, a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest. Relying on Sections 48, 77, 79 and 80 of the CrPC,

The guidelines stated the following guidelines for inter-state arrest:

The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit another State without getting arrest/search warrants.
Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
If the possible arrestee is a female, a lady police officer will be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down, u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim’s name can also be indicated.
Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314).
Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon’ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
In terms of S. 41C, control rooms are established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. The Control Room at State level must collect details of the persons so arrested.
The police officer must record all the proceedings conducted by him at the spot and prepare an ‘arrest memo’ indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family members would be able to arrange legal assistance for him.
The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in a police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
On arrival at the police station, the police officer must make an entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-de belief. He cannot take shelter under another person’s belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-de. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicles should be used for transportation to the extent possible.
At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is an adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
In cases where the police officer finds the victim/prosecutrix to be a ‘minor’, soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
The MHA/State Government should circulate the Rules/Guidelines/Notifications etc. from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.

What is Bail Bond? | Criminal Law

June 4, 2021/in Criminal, Legal Awareness, Publications /by Chandni Joshi

What is Bail Bond?

Introduction

A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom. When someone is charged and booked for a serious crime, they have to wait for a bail hearing. During the hearing, the judge must weigh the charges and circumstances before determining the size of the bond. If the defendant is unable to pay the bail fee, they may either remain in jail until their court date or employ a bail bond agent. The bail bond attorney will charge a percentage of the bail amount as a non-refundable fee and then give bail to the defendant when the bail bond paperwork is done. Provisions for bail in trial court & inherent powers of high court : a webinar brief - iPleaders

The following article deals with the whole process of Bail Bonds and the Role of Bail bond agents with some advantages and disadvantages of this facility provided to the suspects. A remarkable case law issued under the topic of Bail bonds was of Hussainara Khatoon V. State of Bihar, 1979 Where it has been shown that the transgression of justice which might poorly accused little Indian or forced into longer cellular servitude for small offenses because their bail proceedings go beyond their meager means and trials do not begin and even if they never conclude. The Apex court has suggested that instead of money factors, other factors such as family ties, roots in the community, job security, membership for stable organizations etc should determine the grant of bail and in appropriate cases, the accused be released on his personal bond without monetary obligations.

Provisions as to bail bond are provided in chapter 33 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.). Section 440 of the Code clearly states that the amount so fixed by the court should take due regard to the circumstances of the case and should not be excessive. Sessions court and high courts are empowered under this section that they may direct the magistrate or the police officer to reduce the amount of the bail bond.

Section 441 of the Code provides that the offender so released on bail or on his own bond, needs to sign a bond of such money as the police officer or the court deems necessary for ensuring his presence when at the time mentioned in the bond or until any time as directed by the court. Thus, bond provides for a surety of the presence of the offender to the court when called upon either to answer the charge or otherwise. In case where a minor is required to execute a bond, the police officer or the court in lieu may execute it only by surety or sureties only. Bond can contain conditions. Such conditions need to be mentioned in the bond itself while executing it.

The court is empowered to commit the person released on bail to jail in two cases: if the surety or sureties are found to be insufficient or afterwards become insufficient; or of the surety or sureties apply before the court for the direction of discharge of either whole bond or any part as related to the applicants. The court, before committing such person to jail may ask him to find sufficient surety to grant him bail again.

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.

The courts have to limit their power where there is only delay in payment to the bail or just because the indemnitor decides not to be responsible for the bail anymore. However, under Section 466 of the Code, the court can forfeit the bail bond on the ground that the condition of production of any property is not fulfilled or if the penalty is not paid without a sufficient cause. Forfeiture here means the retainment of the bond money even after the case is over. In the latter case, if even the surety does not come up for the offender rescue then, the offender may be imprisonment which may extend to 6 months. It also in the discretion of the court to remit any amount of penalty after recording the reasons for doing so and allow the part performance. Further, if the offence for which the offender has furnished security under Sections 106 or 117 or 360 of Cr.P.C. result into conviction of the offender which resultantly breach any condition (such as tampering evidence, commission of any offence, hamper investigation, runs away, commits any act of violence against police) of his bond, the judgement of conviction shall be used against him and his sureties unless the contrary to this proved. Such forfeiture of bond is appealable against as mentioned in Section 449 of the Code. On appellate court has the power to levy such amount due on a bond for appearance before such court.

But what happens after the bond is forfeited? On the event of death of the surety or his becoming insolvent or when any forfeiture is carried out in the above cases, the court shall order such person from whose security was demanded to furnish a fresh security bond failure of which the magistrate of first class may proceed as if there been a default in complying with the original order of bond.

Following any forfeiture of bond in case of any breach of the conditions mentioned in it, result into cancellation of such bond where the alleged offender thereafter cannot seek release on bail on his own bond except when the police officer or the court is of the view that no sufficient cause of failure can arise of the person bound by the bond to comply with its condition.

Above were the provisions of bail bond but what actually happens after an order is passed in this regard? How to execute a bail bond after the passing of such order?

The documents required for practical execution are:

Bail application
Id proof of the person executing it
Id proof of the surety giving guarantee for the person
Demand draft or cheque for the sum to be paid for the bond
Property papers in case a property is being charged for the purpose of furnishing the bail bond and tax return receipts.
Declaration by the surety or sureties
Letter of undertaking

The surety has to provide for an application of undertaking of the bail bond for the offender. He is also having to be certified that he is not insolvent and possess enough property to enable and stand surety. Besides he also has to declare as an indemnitor he has the knowledge of the conditions on which the bail bond is executed and that he provides for the surety of fulfilment of the conditions on behalf the offender. Thus, at the police station, after signing the requisite documents and paying the bond money, the execution of bail is completed.

Advantages

It’s easy to see the negatives when you’re involved in the bail bond process, whether you’re the one who needs to get out of jail or you’re the one who’s helping a loved one out. It’s a terrible situation that nobody wants to be in, so it’s pretty hard to see the light of the situation. A few advantages of issuing bail bonds are that most bail bond companies are open on a daily basis, in fact, on a 24-hour basis. As such, one can obtain bail bonds at any time they need them. With bail bonds, only 10% of the bail amount needs to be paid. The rest is going to be the job of bail bondsman to sort out.

Most of the agents that run bail bond companies are professionals in court cases, prosecution, and bail and bond issues. As such, you will benefit from their vast experience and knowledge. You can pay bail bonds with some kind of payment plan and thus, ease your financial burden when you’ve been arrested. You pay only 10% of the full bail amount, leaving you with 90 percent to save or spend as much as you need. You can pay your small bail bond installments with cash, credit or debit and checks. A secure online payment portal is also available. There is no need to worry about going to the courthouse with a large amount of bail money. You will be assigned a professional and helpful bail agent. They’ll give you advice throughout the entire process and you’ll know exactly what’s going on. Like a lawyer, they want you to get the best result.

Disadvantages

The bail bond system is considered discriminatory by many, even in the legal profession, as it requires low-income defendants to stay in jail or scrap a 10% cash fee and the rest of the bail-in collateral even before they stand trial for any crime. According to a report conducted by prison policy organizations, about 536,000 people are being held in jail because they can’t afford bail or bail bondsman services. At the end of the process, you won’t get the bail bond money. The bondman accepts the 10% premiums as their fees. You can only take advantage of the bail bond company in the state where it is licensed. You may not benefit from this if you are not located within their jurisdiction.

Conclusion

In my opinion, whilst granting bail may also consider the socio-economic factors of the accused flight of the accused may also be taken into account and compassionate attitude towards them, the court may take into account certain conditions prior to granting bail which are the nature of the offense committed by the accused, which are considering, the nature of the offense charged and the apparent likelihood of conviction. It may also include any other factor indicating the relationship of the accused shall be the community or barring the risk of intentional failure to appear, the character and former criminal record of the defendant shall be the determination of the amount of bail in the present case. At the time of bail, the person does not have the right to live outside the jurisdiction of the court, he/she does not have the power to go abroad and in other states without the permission of the court, because you have to appear at the court and police station at any time and you have to pay a fixed deposit in court.

What is Transit Bail? What is Transit Anticipatory Bail?

May 12, 2021/in Criminal, Gujarat High Court, Legal Awareness, Publications /by Chandni Joshi

“Transit Bail” or “Transit Anticipatory Bail”

Recently, words like “Transit Bail” “Transit Anticipatory Bail” have caught the nation’s attention, in the wake of the ‘toolkit’ case.

Why in news ?

The Bombay High Court last week granted 10 days Transit Anticipatory Bail to Shantanu Muluk whose arrest was sought by the Delhi Police in connection with the toolkit case. Following this, a Mumbai based lawyer, Adv. Nikita Jacob was also granted three weeks transit anticipatory bail in the same case.

Court Grants 7-days To Delhi Police to File Reply To Nikita Jacob | NewsTrack English 1

What is bail ?

the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.

What is Bailable and Non-Bailable offence ?

Bailable Offences :	Non- Bailable Offences :
Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other Law for the time being in force	Non-bailable Offence means any other offence.
Bailable offences are regarded as less grave and less serious.	Bailable offences are grave and serious offences, For example- offence of murder.
Under Bailable offences, bail is claimed as a matter of right.	Under Non-bailable offences, bail is a matter of discretion

What is an ordinary/ regular bail ?

A ordinary/ regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439.

What is Anticipatory Bail ?

Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence. For which

Section 438(1) says, when any person has a 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 Sessions Court for a direction under this section. The court may grant the bail if it deems fit.

Section 438(2) says that Bail on Condition can be given if there is compulsory presence for interrogation, no obstruction to justice or leaving the country.

Need of Anticipatory bail arises out of the following reasons :

To avoid false cases for the purpose of disgracing or for other mala fide intentions by getting the framed/ victims detained.
Where there is likelihood of the accused getting absconded or misusing the rights and liberties etc.

As per section 438 in the Code of Criminal Procedure, 1973 states the Direction for the grant of the bail to any person apprehending arrest.

What is Transit Anticipatory Bail ?

This piece is an attempt to provide a conceptual understanding of these terms ‘transit anticipatory bail’ or ‘transit bail’, which means the same and are used interchangeably.

The Word ‘Transit Bail’ or “Transit Anticipatory Bail’ are neither defined under the code of Criminal Procedure or any other law in force, nor do the find any specific reference under the law of criminal procedure. However, the roots of this concept can be traced under the Cr.P.C.

The reason why these concepts do not have a specific or a single source of provision is mainly because the concept is a “Judge made law”. From time to time, Indian Courts have interpreted the concept by reading between various sections under the criminal law thereby giving a structure to an otherwise uncommon postulation in legal jurisprudence.

When to ask for Transit Bail?

A transit anticipatory bail is sought when a case against a person has been or is likely to be filed in a state different from the one in which he or she is likely to be arrested. So the purpose of a transit bail is to allow the person bail, so they can approach the appropriate court in the state in which the case has been filed for anticipatory bail.

Simply, “Transit Bail” means bail granted by a Court not having jurisdiction over the place where offence was committed.

For Example, A is resident of Gujarat and has an apprehension that a case might get registers against A in Rajasthan. In normal situation, A will have travel to Rajasthan from Gujarat in order to get bail as the Rajasthan Court is empowered to grant bail to A. However, if A is apprehending arrest by Rajasthan Police within Gujarat jurisdiction, he can move to court in Gujarat for seeking anticipatory bail. The local courts grant bail as a limited protection till the time accused approaches the jurisdictional court for bail.

Largely, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate court so that in case the police wants to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation throughout the ongoing investigation process.

Use of Transit Anticipatory Bail

In absence of transit anticipatory bail, the police of some other state can arrest a person from their home town without granting them an opportunity to apply.
The only option left with the person would be to apply for a regular bail and once arrested to be taken into the state where the case is registered.
Largely, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate Court so that in case the police want to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation.

Once the person is arrested, they have to be produced before the magistrate within 24 hours. They are thus produced by the police of the other state (that has registered the case) where the person has been arrested to get the transit remand. It may not be possible to produce the person within 24 hours sometime too.

What is a Transit Remand Order?

In practical terms, ‘Transit Remand Order’ means on order passed by a Judicial Magistrate remanding an arrested person to police custody for the purpose of his transit to another state. By issuing such a ‘Transit Remand Order’, the local magistrate certifies that the police personnel from the outside state had the authority to arrest the person, and such arrest was done legally. Further, the Magistrate authorizes the other-state police to take the arrestee out of home state.

Statutory Relevance of Transit Anticipatory Bail : Analysing Judicial Principles

Sec. 438 of the Code of Criminal Procedure deals with “direction for grant of bail to person apprehending arrest.” Although the provision directly indicate the grant of transit pre-arrest bail, it provides that when any person has reason to believe that he may be arrested on an 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; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be release on bail.

What courts have said before

While Section 438 does not talk about transit anticipatory bail, courts have in the past granted such bail to those who feared arrest.

For instance, in a 1985 judgment, a two-judge bench of the Bombay High Court considered the question whether Section 438 CrPC can be used by it when the case is filed in some other state.

The court ruled that it “would have jurisdiction if a person is likely to be arrested at a place within the jurisdiction of this court”. It referred to similar decisions given by the Karnataka High Court, the Calcutta High Court and the Delhi High Court.

However, in another 2017 judgment in the Gurugram school murder case, Justice A.S. Gadkari of the Bombay High Court opined that the jurisdiction in such cases rests with criminal courts in the place where the crime was committed and not where the accused lives or in any other part of the country.

Apprehension of Arrest- the key factor

In the recent order of the Bombay High Court (Aurangabad Bench) in the Shantanu Muluk case, the High Court observed “that the apprehension of arrest is the key factor, that is, requires to be consideration in such applications”

What HC Said in Muluk’s Case

Muluk, a resident of Beed district, Maharashtra, had approached the Bombay HC with an application for anticipatory transit bail, informing the court that a Delhi Police team is already in Beed.

The high court noted that the FIR has been lodged in New Delhi and so any regular application for anticipatory bail under Section 438 of CrPC will be considered by the Delhi High Court. It, however, asserted that the court now needs to consider whether Muluk can be granted transit bail to be able to approach the proper court in Delhi for this purpose.

It then referred to the Bombay High Court’s 1985 verdict, saying it would be applicable in this case.

“The only fact that is required to be considered as to whether the applicant can be granted liberty by way of transit bail to approach to the competent authority for seeking appropriate relief”, the court observed in that case. Even the fact that Delhi Police (which was seeking to arrest the applicant in Maharashtra) was not made a party in the bail application is not a ground to reject the application, the court said.

“It Is submitted that officers from Delhi Police are already in Beed. They will have to take help of local police for any operation to be conducted in the investigation at Beed. Under such circumstances, application cannot be rejected only on ground that the Delhi Police are not party to this application. The purpose of the bail application would itself get frustrated”, the court observed.

Supreme Court Observations

Although the intervention of the Apex Court in the matters involving the issue of transit anticipatory bail has been limited, the Supreme Court has left the question open as to what will be the exact position while dealing with transit anticipatory bail.

The Supreme Court in the case of Sandeep Sunil kumar Lahoriya Vs. Jawahar Chelaram Bijlani vide order dtd. 14.06.2013 in Special Leave to Appeal (Cri.) No. 4829 of 2013 had the occasion of dealing with a case wherein the accused was granted transit anticipatory bail by the Madhya Pradesh High Court without noticing that the High Court had rejected his anticipatory bail application which was upheld by the Supreme Court.

The case was registered under Sec. 302, 120B and 34 of IPC and sec. 3 and 25 of the Arms Act. The Supreme Court observed in the order dated 14.06.2013.

“The accused appears to have filed an application for anticipatory bail in the nature of transit bail, which in our view has no provision under the Code of Criminal Procedure, 1973.”

The court went ahead to observe “It is difficult to comprehend under what provisions and under what authority of law such an application was even registered by the High Court of Madhya Pradesh.”

Thereafter, the court while dealing with the same case after two month vide order dtd. 01.08.2013 observed that:

“The Order passed by the High Court was in regard to a transit bail and the observations made by this Court in the order dtd. 14th June, 2013 were with regard to anticipatory bail and hence the observations made by this Court in the order dtd. 14th June, 2013 or in any other order passed by this Court in these matters, will not prejudice in any way the claim of the respondent No. 1 for either temporary or regular bail before the Trial Court or the High Court which may be decided on its own merits.

We also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court.”

In the recent case of Shantanu Muluk v State of Maharashtra case, the prosecution had cited the observations of the Supreme Court in the Sandeep Lahoriya case(order dated 14.06.2013) to argue that transit bail application was not maintainable.

However, the Bombay High Court referred to the subsequent order passed by the SC in the Sandeep Lahoriya case(order dated 01.08.2013) and opined that the apex court has left the question of law on transit bail open.

The relevant observation of the High Court are as follows :

“Though the observations of Hon’ble Supreme Court are binding on this Court, here in view of the fact that the matter was adjourned and then Hon’ble Supreme Court while passing further order in the same matter observing that, “we also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court.” ; to my mind, has kept the said point open”

Transit Bail in Serious Offence

Coming to the question whether transit anticipatory bail application can be granted in serious offences also, let us look at some of the cases where Court dealt with such applications involving serious allegations.

Recently the Delhi High Court in Dr. Sumit Gupta v. State of NCT of Delhi 2021 SCC Online Del 409 granted four weeks transit anticipatory bail to a doctor husband who was apprehending arrest in a case registered against him in Madhya Pradesh under sec. 498A and 34 of IPC along with various provisions of Domestic Violence Act.

The Court granted bail on the ground of his “apprehension of arrest” with a direction that he may not be arrested on his way to reach Bhopal prior to applying for anticipatory bail in the Court of competent jurisdiction.

In another case, the Delhi High Court in Suraj Pal v. Vijay Chauhan 2015 SCC Online Del 10285 observed that while granting transit bail, the nature and gravity of offence has to be taken into consideration.

The Court observed thus “Without considering the nature and gravity of the offence in question, transit bail has been granted for inordinate period of three weeks and not only this, it has been extended by another two weeks. Granting transit bail for such an inordinately long period amounts to virtually granting pre-arrest bail. Impugned orders do not provide any justification for granting transit bail for such a long period. The nature and gravity of the offence has not been considered. The discretion to grant transit bail has been exercised by the learned Additional Sessions Judge in a most inappropriate manner, which needs to be deprecated.”

Therefore what falls from the above mentioned cases is that there cannot be a straight jacket formula while dealing with transit bail applications. More so, when the Apex Court has not yet gone specifically into the question of devising its principles yet. However, the following prepositions can be understood as far as grant of transit bail or transit anticipatory bail is concerned:

Core statutory provision concerning grant of transit anticipatory bail is sec. 438 of Cr.P.C
Since the law on transit anticipatory bail is mostly judicially interpreted, High Court observations may differ according to the facts and circumstances of each case. Therefore, there is no straight jacket principle to follow in every case.
While dealing with the applications of transit anticipatory bail, the Courts must take into consideration bona fide grounds to ensure that there is no manipulation of playing with the jurisdictions of the Court.
The Court must keep into mind that the due process of law is not abused while granting transit anticipatory bail.
Apprehension of infringement of personal liberty due to apprehension of arrest is a ground for seeking transit anticipatory bail.
Courts may show variance while dealing with serious and non serious offences while granting transit anticipatory bail. Such bail is purely granted on the discretion of the judge.
Transit bail is granted only for a limited period to enable the accused to approach the court having regular jurisdiction to seek bail.

Other Judgements :

In a 1985 judgment, a division bench of the Bombay High Court held in the case N K Nayar and others vs State of Maharashtra(1985) that a court will have jurisdiction to consider an application under Section 438 of the Code of Criminal Procedure if the applicant is apprehending arrest within its jurisdiction.

“…this Court would have jurisdiction if a person is likely to be, arrested at a place within, the jurisdiction of this Court…even if the offences are said to have been committed outside the State of Maharashtra”, the High Court observed.

The Bombay High Court in that case referred to similar views expressed by Karnataka High Court in the case of Dr. L. R. Naidu v. State of Karnataka reported in 1984 Cri LJ 757, and the Calcutta High Court in the case of B. R. Sinha v. State reported in 1982 Cri LJ 61.

In Vijay Latha Jain v. State 2007 SCC Online Del 1723, the Delhi High Court granted transit bail to the petitioner to enable them to have a “recourse to remedy available” to them in the court where the complaint case was registered.

The Bombay High Court recently dealt with applications seeking transit anticipatory bail by corporate director and marketing agent of an aviation institute who were apprehending arrest granted transit bail to them. Offences were registered against the applicants under sec. 420, 406 read with sec. 34 IPC. The Court while accepting their applications ordered that they may approach the court of competent jurisdiction for appropriate reliefs. (Rupesh Naryan Bawiskar v. State of Maharashtra 2019 SCC Online Bom 13012).

Recently, the Karnataka High Court, while granting bail to Republic TV COO Priya Mukherjee in the TRP scam case, observed that when personal liberty is at stake, a person can seek transit bail.

“..when personal liberty of a person is under threat and stake there is an apprehension of arrest, the petitioner can seek relief before the Court invoking Section 438 of Cr.P.C”, the High Court observed in Priya Mukherjee v State of Karnataka.

It also noted that the high court last month granted transit anticipatory bail to ‘Tandav’ director Ali Abbas Zafar, Amazon Prime India head Aparna Purohit, producer Himanshu Mehra and the show’s writer Gaurav Solanki, against whom a case was registered in Lucknow for allegedly hurting religious sentiments through the web series.

Court can examine if the applicant is a bona-fide resident within its jurisdiction:

In Honey Preet Insan v. State 2017 SCC Online Del 10690 (the famous Gurmeet Ram Rahin Singh case), a transit anticipatory bail application was filed by Honey Preet Singh. Preet, ordinarily a resident of Haryana had sought transit bail from a Delhi Court. The Delhi High Court while analyzing sec. 438 Cr.P.C. and transit anticipatory bail denied transit bail to her by laying down the following observation:

“Whenever an application for anticipatory bail is made before a court, where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that court, the court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. If the court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case.”

Conclusion

Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. Thus this paper dealt with how A anticipatory bail and regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439 and Benchmark Judgements and view taken by Hon’ble High courts and Hon’ble Supreme court.

Author: Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

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