Tags:
Journalism of Courage
The Supreme Court on Tuesday (March 14) agreed to hear a petition filed by the Karnataka Lokayukta, a state body empowered to deal with corruption complaints against public servants, challenging a Karnataka High Court order granting pre-arrest bail to the BJP MLA Madal Virupakshappa, who was also serving as the chairman of the Public Sector Undertaking Karnataka Soaps and Detergents Limited (KSDL).
On March 6, Virupakshappa approached a civil court in Bengaluru and obtained a temporary injunction against defamatory media reporting in the corruption case against 45 media outlets.
A day later, the MLA moved the Karnataka High Court for the grant of anticipatory or pre-arrest bail, which was allowed by Justice K Natarajan subject to the MLA cooperating with the investigation
Thereafter, the Karnataka Lokayukta filed an appeal in the Supreme Court against the Karnataka High Court’s decision to grant Virupakshappa pre-arrest bail.
Black’s Law Dictionary describes ‘bail’ as procuring “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 judgment of the court.”
Although “bail” has not been expressly defined in Indian statutes, the Code of Criminal Procedure (CrPC) differentiates between “bailable” and “non-bailable” offenses. It also defines three kinds of bail that can be granted — regular bail under Sections 437 and 439; interim bail or short-term bail which is given when regular or anticipatory bail application is pending before the court; and anticipatory or pre-arrest bail.
The provision for “anticipatory bail” was introduced under Section 438 of the CrPC after the 41st Law Commission Report in 1969 recommended the need for a measure that protects against arbitrary violation of one’s personal liberty, such as when politicians detain their opponents in false cases.
Anticipatory bail can be granted under Section 438, when “any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”. It can be granted by the High Court or the Court of Session, under this section, for non-bailable offenses for which one anticipates arrest, even if the actual arrest has not happened or the FIR has not been registered. Non-bailable offenses are more serious offenses, punishable with at least three years imprisonment and above.
Section 438 was amended in 2005, following which it laid down principles for consideration for the grant of anticipatory bail under subsection such as whether the accused is likely to flee, is a habitual offender, or is likely to tamper with evidence along with his antecedents, such as previously being arrested for a cognizable offense.
However, since state legislatures are empowered to amend certain provisions of the CrPC, Maharashtra, Odisha and West Bengal follow their own, modified versions of Section 438.
Uttar Pradesh and Uttarakhand did away with anticipatory bail through the CrPC (UP Amendment) Bill, 1976, during Emergency. In 2019, however, this was reintroduced after then President Ram Nath Kovind approved the CrPC (Uttar Pradesh Amendment) Bill, 2018. Similarly, in 2019, the Uttarakhand Assembly passed an amendment Bill seeking to revive Section 438 of the CrPC.
While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2) like,
(i) the person shall make himself available for interrogation by a police officer as and when required.
(ii) the person cannot make any inducement, threat, or promise, directly or indirectly, to any person acquainted with the facts of the case to dissuade him from disclosing them to the court or the police.
(iii) the person shall not leave India without the previous permission of the court.
(iv) such other conditions may be imposed under sub-section (3) of section 437 “as if the bail were granted under that section”.
Ahead of the Karnataka Assembly elections, the Lokayukta on March 3 seized over Rs 8 crore of unaccounted cash from BJP MLA Madal Virupakshappa’s office and his son Prashanth Madal’s residence, following which both were accused in a bribery case filed under Section 7 (a) (public servant taking gratification other than legal remuneration for an official act) of the Prevention of Corruption Act alongside four others.
The raids happened after the MLA’s son was caught red-handed, allegedly accepting a bribe of Rs 41 lakh on behalf of his father on March 2 to secure a tender for supplying raw materials to KSDL.
