The accused in criminal cases take anticipatory bail from the Supreme Court or High Courts and use it to get regular bail from trial courts, taking advantage of the procedural labyrinth in criminal law.
The Supreme Court has asked the directors of judicial academies and criminal courts across the country to guard against such wily acts by persons trying to get the better of the law.
A Bench of Justices Ranjan Gogoi and Naveen Sinha recently came across the phenomenon of accused approaching multiple forums to get bail in the case of a woman accused of abetment to suicide.
Modus operandi
Usually, the modus operandi is that the accused would approach the Supreme Court or the High Court concerned or even the sessions court for interim pre-arrest bail.
Once this is procured, they surrender before the local trial court and use the interim order for protection against arrest from the higher court to flex their muscles before the trial judge to get regular bail.
The fallout is that in future, even if the higher court cancels or decides not to renew the interim bail, the accused would remain on bail on the strength of the trial court’s regular bail.
The Bench was informed this loophole by Jharkhand Atulesh Kumar.
“When the Supreme Court or a High Court or even a sessions judge grants interim anticipatory bail and the matter is pending before that court, there can be no occasion for the accused to appear and surrender before the... trial court and seek regular bail. The predicament of the subordinate judge in considering the prayer for regular bail and the impossibility of denial of such bail in the face of the pre-arrest bail granted by a higher forum is real. Surrender and a bail application in such circumstances is nothing but an abuse of the process of law by the accused,” the Bench said.
The Bench observed that “time has come to put the subordinate courts in the country on notice that such a practice must be discontinued and consideration of regular bail applications upon surrender during the pendency of the application for pre-arrest bail before a superior court must be discouraged.”