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Anticipatory Bail versus Custodial Interrogation:

Striking a balance
Bar & Bench ⋮ 11-14 minutes

The recent decision of the Supreme Court in the case of P Chidambaram v. Directorate of
Enforcement yet again gives rise to the eternal debate between custodial interrogation
and anticipatory bail.

Section 438 of the Criminal Procedure Code deals with ‘grant of bail to a person
apprehending arrest’ (essentially known as anticipatory bail) and empowers the High
Court or the Court of Sessions to grant anticipatory bail upon exercising discretion.
Anticipatory bail can be granted subject to conditions that the accused shall make himself
available for investigation as and when required and not threaten or influence witnesses
or tamper with evidence. In addition, any other condition in the interest of justice can also
be imposed.

The most comprehensive analysis of the nature and scope of Section 438 is contained in
the Constitution Bench judgment of Gurbaksh Singh Sibbia v. State of Punjab. This
decision emphasises that Section 438 has to be interpreted to embody the principle of
presumption of innocence in favour of the accused. This, because at the time of seeking
anticipatory bail, the guilt of the accused is yet to be proven through trial. Section 438 is
viewed as the provision that protects personal liberty, which lies at the heart of Article 21
of the Constitution of India.

Therefore, the plenary power exercised under Section 438 cannot be interpreted in a
manner that creates fetters or unnecessary restrictions besides those specifically
contained in the provision itself. A fortiori, the scope of the Court’s inquiry at the stage of
deciding an application of anticipatory bail ought to be restricted to the question whether
the applicant fulfils the conditions elaborated above. Such an inquiry also appropriately
secures the interests of the prosecution/investigating agencies.

The judgment sends out a word of caution that Courts should be particularly mindful of the
stigma attached to arrest of an individual as well its ramifications while deciding an
application for grant of anticipatory bail. For this purpose, Courts should look into the
authenticity of the allegations to rule out ulterior motives and potential objectives to injure
and humiliate an applicant by having him arrested.
It has been unequivocally declared that the presence or lack of apprehension of the
applicant absconding is the paramount consideration for deciding a case for grant or
rejection of anticipatory bail. It must be added that the judgment has also alluded to the
practical situation that grant or rejection of anticipatory bail will almost always be based
upon a given set of facts and situations. As such, the nature and seriousness of the
proposed charges and apprehension that witnesses or evidence will be tampered with are
also relevant considerations for swaying the final outcome.

The Supreme Court, in its decision in the case of Siddharam Mhetre v. State of
Maharashtra (2011), has comprehensively restated the law on anticipatory bail by relying
upon Gurbaksh Singh. In this decision, the Supreme Court has added a new dimension to
the interpretation of Section 438 by specifying that there is no requirement to make out a
‘special case’ for exercise of power under Section 438. After elaborate discussion on the
subject, the Supreme Court concluded that custodial interrogation should be avoided in
cases where the accused has joined investigation and is fully cooperating with the
investigating agency and is not likely to abscond.

These two judgments have been eloquently reiterated by the Supreme Court in Bhadresh
Seth v. State of Gujarat (2016). Applying the principles governing Section 438 that can be
culled out from the two above-mentioned judgments, the Supreme Court upheld the
Session Court’s decision to grant anticipatory bail after it was reversed by the High Court.
This conclusion was based upon the finding that there was no apprehension that the
accused would flee, or that he would try to influence the witnesses. It was further noted
that there was always scope for cancellation of bail in case the need arises.

Interestingly, arguments applying the principles laid down in the above-mentioned

judgments are conspicuously absent in P Chidambaram’s case. In its discussion, the
Supreme Court has made a brief reference to the judgment in Siddharam Mhetre’s case
(supra) to discuss only a few of the many parameters this judgment has elaborately set
out.

The Supreme Court did not delve into certain crucial factors which assume extreme
relevance in the facts of P Chidambaram’s case. These include the antecedents of the
applicant, possibility of the applicant to flee from justice, accusations made only with the
object of injuring or humiliating the applicant by arresting him, a balance to be struck
between likelihood of prejudice to investigation and prevention of harassment, humiliation
and unjustified detention of the accused, as well as the reasonable apprehension of
influencing witnesses.
On the other hand, the Supreme Court placed heavy reliance upon the judgment in the
case of CBI v. Anil Sharma while ruling in favour of custodial interrogation. This decision
was rendered way back in 1997 when the Supreme Court took a stringent view that
custodial interrogation is qualitatively more elicitation oriented than questioning a suspect
who is well ensconced with a favourable order of anticipatory bail.

The judgment in Anil Sharma’s case makes no reference to the Constitution Bench
judgment in Gurbaksh Singh’s case (supra) and its elaborate discussion on the principles
governing Section 438 set out in the preceding paragraphs. Under such circumstances, it
can be reasonably argued that the judgment in Anil Sharma’s case is per incurium.

Moreover, the Supreme Court in P Chidambaram’s case has interpreted the power
under Section 438 as an extraordinary power which is to be exercised sparingly and that
anticipatory bail should be granted only in an exceptional case and not as a matter of rule.
This view lies in the teeth of the law laid down by the Constitution Bench in Gurbaksh
Singh’s case as well as Siddharam Mhetre’s case (re-affirmed in Bhadresh Seth’s case).
Moreover, the judgment in Siddharam Mhetre’s case has clearly explained that an
applicant does not have to make out a special case (in other words an exceptional case)
to secure anticipatory bail.

The stock argument of an investigating agency to oppose grant of anticipatory bail is the
need for custodial interrogation. It is a no-brainer that the argument on behalf of the
Enforcement Directorate in P Chidambaram’s case was also the same. The Supreme
Court acceded to its request by observing that arrest is a part of the process of the
investigation, intended to secure several purposes and that grant of anticipatory bail may
hamper the investigation.

Right to Counsel during Custodial Interrogation

The requirement of custodial interrogation has to be weighed very carefully by the Courts.
Despite the protection afforded by Article 20(3), there are inherent limitations in the
manner in which custodial interrogation is carried out in India. In India, unlike countries
such as the United States, the United Kingdom and the European Union, an accused
does not have the benefit of presence of a lawyer at the time of undergoing custodial
interrogation. In those countries, presence of a lawyer during interrogation is an integral
part of the right of an accused person to legal advice.

Article 20 (3) affords protection to an accused against self-incrimination and Article 22 (1)
gives the right to a person who is arrested to consult a lawyer. Notably, the judgment
authored by Justice Krishna Iyer in the case of Nandini Satpathy v. PL Dani broke new
ground by its opinion that Article 20 (3) becomes operative from the stage of police
interrogation. The judgment took a step further and pronounced that in terms of Article 20
(3) read with Article 22 (1) of the Constitution, the police is required to permit the advocate
of the accused to be present at the time he is examined.

Unfortunately, the decision in Nandini Satpathy’s case was not followed by the Supreme
Court in later decisions. On the contrary, in the case of Poolpandi v. Supdt., Central
Excise, the Supreme Court rejected the contention that an accused is entitled to the
presence of a lawyer during questioning. Nonetheless, in the case of DK Basu v. State of
West Bengal, while setting out detailed guidelines to govern arrest and detention, the
Supreme Court laid down the requirement that an arrestee may be permitted to meet his
lawyer during interrogation.

An accused in India, with a ‘limited right’ to legal advice at the time of custodial
interrogation, stands on a weaker footing as compared to a counterpart in other countries
mentioned above. Courts in India (best articulated in the literary flourish of Justice Krishna
Iyer) “have always sought to maintain the fine balance between the rights of an individual
and the social obligation to discover guilt, wherever hidden and to fulfil the final tryst of the
justice system with the society.”

It goes without saying that the balancing act more often than not results in upholding the
right of the investigating agency to obtain custodial interrogation. The reasoning behind
this perpetual saga is that unless the investigating agency gets a free hand during
interrogation, the collection of evidence will get severely hampered and it will be difficult to
obtain conviction.

Custodial interrogation in certain cases such as those under the Prevention of Money
Laundering Act assumes importance because a statement made under Section 50 before
the officers of the ED holds more evidentiary value as compared to a statement before a
police officer under Section 161 CrPC. Therefore, while considering grant of anticipatory
bail, Courts have to ensure that the balance should not unfavourably tilt towards the
investigating agency as a thumb rule.

The 268th Report of the Law Commission on amendments to provisions relating to bail
under the CrPC has noted the law laid down by the Constitution Bench in Gurbaksh
Singh’s case (supra) and the judgment in Siddharam Mhetre’s case. The Commission has
opined that the grant of anticipatory bail ought to be considered with a stringent yardstick
in cases of heinous crimes. As regards grant of bail in economic offences, as opposed to
the Supreme Court’s rigid view in P Chidambaram’s case, the Law Commission has ruled
in favour of grant of bail subject to stringent conditions.
The experience of custodial interrogation in other countries has shown that the best
balancing act is to allow custodial interrogation in India with a similar right to presence of a
lawyer. This dispels the apprehension of strong-arm interrogation methods, instils
confidence in custodial interrogation, and aptly balances the rights of the accused and the
investigating agencies.

It is common knowledge that custodial interrogation is the weapon wielded by

investigating agencies to secure clinching evidence against an accused. On the other
hand, anticipatory bail is the shield deployed by an accused to avoid the inclemency of
arrest and custody. Divergent opinions and views emanate from the Supreme Court in
cases involving anticipatory bail. Subjectivity has become the hallmark in bail matters
because peculiar facts play a pivotal role in influencing the Court’s decision to grant or
refuse bail.

Having said that, the paramount consideration for anticipatory bail should eventually be
the furtherance of the ends of justice. In order to do complete justice, the judgments in
Gurbaksh Singh’s case and Siddharam Mhetre’s case (supra), which have defined the
legal framework for grant of bail, have to be made the guiding beacon in the quest to find
objectivity in anticipatory bail cases.

The author is a lawyer practising in the Supreme Court and is a keen observer of law,
polity, and judicial process.