SHOULD A person seeking anticipatory bail appear in court? If he is present and the court rejects his anticipatory bail application then should the police arrest him on the spot without a warrant? Answering these questions, which would actually come as a breather to those seeking anticipatory bail, the Law Commission headed by retired Justice A. R. Lakshmanan with D. P. Sharma and Tahir Mahmood as members, recently submitted a report to the Union Minister of Law and Justice, H.R. Bhardwaj, suggesting that the government abolish a criminal law provision requiring the person's presence in the court and facilitating his arrest on the spot if his plea is rejected.

The law commission sought deletion of section 438(1)(b) of the criminal procedure code (CrPC) stating that the relatively new provision was wrong in empowering police to arrest the accused in the court without warrant.

In its 89-page report, the Commission has reminded the government of the Supreme Court's decision in M.C. Abraham versus State of Maharashtra case wherein it held that the fact that anticipatory bail has been rejected "is no ground for directing the immediate arrest of the accused." The report further adds, "There may be cases where an application may be rejected and yet the applicant is not put up for trial as, after investigation, no evidence is found against him." "Power of arrest, therefore, has to be exercised with due caution and circumspection and not in a mechanical manner," it added.

In 2006, the government amended the Cr.PC and inserted a provision in Section 438, which said an applicant seeking anticipatory bail at the time of final hearing should be present in the court. If he fails to turn up, the public prosecutor can seek the court's direction for his arrest.

The lawyers' contention was that if a person's application was rejected in the lower court, he should have the right to move the higher courts. Hence the matter was referred to the Law Commission for its views. However, the recommendation has generated mixed opinion among the legal fraternity and police authorities.

"If a serious offence like murder is committed then the police can immediately arrest the accused under section 41 of the Cr.PC. In such cases, the police would not wait to get a warrant from the concerned court. By then the accused would abscond," said chief public pros ecutor of the Bombay High Court Satish Borulkar. In case the court rejects anticipatory bail, it often grants relief for a day or two to the applicant to approach the higher court. And in frivolous cases, the police themselves do not seek the custody of the accused.

"The court grants anticipatory bail in civil cases where custodial interrogation is not required," said special public prosecutor Rohini Salian who has argued several cases under the stringent Maharashtra Control of Organised Crime Act and Prevention Of Terrorism Act. "A balance should be maintained between the right of an accused/suspect and that of the society at large," said Salian.

Welcoming the recommendation, senior criminal lawyer Majeed Memon said that the very spirit of section 438 of the CrPC was defeated if the anticipatory bail seeker was not allowed to exercise his right of appeal which is a constitutional assurance. Memon added that the latest recommendation of the Law Commission supports the fact that a citizen should have the liberty to exercise right of first appeal against a trial court's order. Rakesh Maria, Joint Commissioner of Police (Crime), however, feels that the present law is very clear and natural justice too mandates the presence of the person in court at the time of the hearing of his anticipatory bail application.

After some accused are granted anticipatory bail, they simply vanish and are not traceable. "Why should they then not be present in the court?" asks Maria. But the police should not exercise its power to arrest merely because the anticipatory bail is rejected.

The police have a different way of functioning. "Ideally, the police should investigate and collect evidence independently and then arrest an accused. But in India the police first arrest the accused, then investigate and collect evidence," said defence counsel I. Bagaria, who has represented several accused in the multi-crore fake stamp paper scam and also Lalit Nagpal, the alleged mastermind in the petrol adulteration scam.

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