Agrani Bhati, Aditya Singh
INTRODUCTION
In the intricate criminal justice system of India, anticipatory bail, as outlined in Section 438 of the Code of Criminal Procedure (CrPC)[1], is a crucial legal recourse enabling individuals to safeguard themselves against potential arrest for serious offenses. In this article, intricate challenges associated with anticipatory bail, particularly in its application to elderly individuals, have been specifically focussed upon.
The key research gap emphasized upon in this article lies in lack of a comprehensive examination of diverse judicial opinions on anticipatory bail for the elderly persons under CrPC Section 438.[2] While some courts emphasize on the importance of age and health as valid factors for seeking the remedy of anticipatory bail, others argue against age serving as an absolute shield from criminal charges, resulting in an understanding void.
The distinct objective of this article is to analyse and dissect the various judicial viewpoints that shape anticipatory bail for elderly individuals. By delving into legal provisions, ethical considerations, and judicial opinions, this article endeavours to offer valuable insights into the intricacies surrounding anticipatory bail for the elderly. Through this article, shedding light on the factors contributing to the divergence in judicial opinions and navigating a nuanced exploration of the legal and ethical aspects have also been aimed upon, with respect to the subject of accommodating age-related problems as a sufficient ground for obtaining anticipatory bail in India.
SECTION 438 OF CRPC: A BRIEF OVERVIEW
Section 438 of the Code of Criminal Procedure (CrPC) addresses the provision of anticipatory bail, and thus, serves as a legal safeguard.[3] “Anticipatory bail means a bail in anticipation of arrest… Where a competent court grants ‘anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on bail.”[4]
The power to grant anticipatory bail is considered exceptional and should be sparingly exercised, particularly in exceptional cases.[5] This section can be broadly interpreted and is not exhaustive in nature. While no specific constraints have been imposed in Section 438,[6] the courts are bestowed with the crucial responsibility of exercising this power judiciously, taking into account various considerations, including those mentioned in Section 437[7] of CrPC.[8]
While Section 437[9] sets conditions for bail in cases of non-bailable offenses (implicitly applicable to Section 438[10]), certain limitations lie particularly regarding offenses punishable with death or life imprisonment, which influence the exercise of anticipatory bail.[11] This highlights that the gravity of the offense is a crucial factor, and that the court must consider the likelihood of the accused avoiding justice.[12] Along with adjudging upon the gravity of the offence, judges are also bestowed with the vital responsibility of assessing the nature of evidence supporting the accusation against the person seeking anticipatory bail, since this remedy arises at the early stages of an investigation. Additionally, the larger interest of the state and society ought to be sought after while adjudicating upon the question of granting anticipatory bail for economic offences, wherein potential for repeated offenses do lie.[13]
Looking at this provision from a historical perspective, it was also formulated to ensure protection of those people, against whom the accusations made were not motivated by the pursuit of justice, but were rather mala-fide in nature with the dishonest intent to humiliate the accused.[14]
GROUNDS FOR GRANTING ANTICIPATORY BAIL
The purpose of anticipatory bail is to protect the rights of individuals. While it plays a vital role in preventing the potential abuse of arrest powers and shielding innocent individuals from undue harassment, it introduces a challenge of maintaining a delicate equilibrium between individual rights and the imperatives of justice. Striking this delicate balance involves carefully considering both the preservation of individual rights and the promotion of public interest. Although the rights to liberty and the presumption of innocence are of utmost importance, the court must also take into account factors such as the seriousness of the offense, its impact on society, and the necessity for a fair and unimpeded investigation. The court's discretionary power in evaluating these considerations within the unique circumstances of each case becomes pivotal in ensuring a fair and equitable resolution.[15]
In order to uphold the aforementioned stipulations, there exist certain judicially determined factors which need to be essentially considered prior to adjudging upon whether to grant anticipatory bail to an individual or not. While keeping in mind the principles established in Gurbaksh Singh Sibbia case,[16] the bench in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra laid down the following grounds-
“(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail, particularly in cases of large magnitude affecting a very large number of people.”[17]
The principles and factors laid down in the two aforementioned cases were reaffirmed by the bench in the case Sushila Aggarwal v. State (NCT of Delhi).[18]
NEED FOR CONSIDERING OLD AGE AS A RELEVANT FACTOR
While observing the factors mandated by Section 438 of the CrPC pertaining to adjudging an anticipatory bail application of an individual, since the matter requires the exercise of discretion by the court, it is necessary to be ensured that the same ought to be done not capriciously, but rather judiciously and within the well-accepted and well-established parameters.[19]
The jurisprudential essence of the provision of anticipatory bail derives its validity from Article 21 of the Indian Constitution,[20] since it plays an imminent role in protection of right to life and personal liberty of the person applying for such a remedy.[21] In accordance with the said perspective, it is imperative to acknowledge the old age of an individual as a significant factor when assessing a case involving a senior citizen seeking anticipatory bail.
There are a variety of concerns which may additionally be faced by an elderly person, as compared to any other under-trial inmate. Elderly individuals often suffer from age-related health problems, and the prison environment may not be adequately equipped to address their medical needs. Access to proper healthcare facilities and regular check-ups is a common challenge. Additionally, the harsh conditions of prison life, including limited mobility and crowded living spaces, can take a toll on the physical and mental well-being of elderly prisoners. Lack of appropriate facilities for exercise and recreation can exacerbate this strain.
Over the past two decades, there has been a consistent increase in the mortality rate within Indian prisons. As per the data released by National Crime Records Bureau (NCRB), in 2018, the number surpassed 1,800 for the first time. Out of these fatalities, 1,639 were attributed to "natural causes," while 149 were classified as "unnatural deaths." An additional 57 deaths fell under the category of "unknown reasons" due to insufficient information from some states. Among natural deaths, statistics reveal a majority occurred due to heart-related ailments (411), lung-related ailments (231), tuberculosis (103), cancer (80), liver-related ailments (72), brain haemorrhage (59), kidney-related ailments (58), and HIV (46), among other causes.[22]
Activists, scholars, and government hospital doctors advocating for prisoners' rights argue that many of these deaths could have been prevented with timely and proper medical care. When in custody, individuals lose not only their freedom of movement but also the ability to choose their own medical care. Given that over 70% of the prison population consists of individuals awaiting trial, a significant portion of these deaths likely involves individuals awaiting their legal proceedings.[23]
When deliberating on an anticipatory bail matter, particularly when such application has been filed by an elderly individual, it is vital to underscore the inherent challenges associated with detaining older persons who are under trial, as previously discussed. The state, indeed, bears the responsibility of looking after the medical well-being of the prisoners, for which, it has made certain strides. This can be exemplified by notable initiatives such as making separate wards for elderly inmates in Tihar Jail, etc..[24] However, despite these efforts, a notable increase in mortality rates has been witnessed within Indian prisons.[25]
Taking this ground reality into consideration, the courts must acknowledge the capacity of the state's prisons to fulfil the basic as well as special health-related needs of an elderly individual applying for anticipatory bail. The courts must take into account whether it would be appropriate for such individual to surrender his right to mobility as well as his right of choosing his preferred medical practitioners for his service, if an instance arises wherein an under-trial arrest is made against this elderly person. In pursuance of this argument, it should be imperative for the judges to consider age-related concerns of an elderly applicant while adjudicating his anticipatory bail matter, in order to uphold the jurisprudential essence of Section 438 of CrPC,[26] which derives its validity from Article 21 of the Indian Constitution.[27]
CONFLICTING JUDICIAL OPINIONS
Regarding the question of granting anticipatory bail to elderly individuals on the basis of their age-related concerns, the judicial opinions of the Indian Courts have been quite vivid, and rather, conflicting.
In a 2021 case, the Punjab and Haryana High Court, while adjudicating upon an anticipatory bail Application filed by a 95-year old man accused of cheating and fraud, held that, “…advanced age no guarantee of a person not indulging in criminal acts…”, along with, “…no doubt senior citizens are entitled to be treated with courtesy and due regard, but human greed does not accept bar of age, sex, race...”, thus rejecting it.[28] In the case, Gautam Navlakha v. NIA, which was related to an anticipatory bail matter in front of the Bombay High Court, the health-related issues of the applicant were argued upon in order to seek grounds. The bench rejected the anticipatory bail plea while quashing this particular argument by assuring proper medical assistance to the applicant in the prison.[29]
In essence, these two aforementioned judgments have highlighted the necessity of following procedural safeguards required for assessing the viability of giving anticipatory bail to a person as being above the old-age or health problems of such an individual. In contradiction with this take, there have been various judgments recently delivered by some courts which have shed light on the vitality of considering the senior citizenship of the anticipatory bail applicant as an essential factor.
Before proceeding further ahead with the discussion on granting anticipatory bail to elderly individuals on the grounds of old-age and related health concerns, we may take into account some recent cases wherein bail was granted to elderly applicants on similar grounds. In the case, Eni v. State of Kerala, a 70-years old person, who was accused of committing offences under Section 377 of the Indian Penal Code[30] as well as Section 4 of POCSO,[31] had applied for bail under Section 437 of CrPC[32] in front of the Kerala High Court.[33] The bench took old age of the accused as well as cardiac ailments being suffered by him into consideration and granted him bail, while observing that, “If no purpose is served by detaining an old aged accused, it is just and proper to grant bail with stringent conditions imposed”.[34] In a 2023 case, the Punjab and Haryana High Court held that denying bail to elderly amounts to cruelty.[35]
Now, coming to the question of granting anticipatory bail on the grounds of old-age and related health concerns of the applicant, the Madhya Pradesh High Court, in the case, Dr. Sudarshan Bhandari and Anr. v. State of M.P. and Ors., granted a transit anticipatory bail of 45 days to an elderly couple on various grounds owing to various facts and circumstances of the case, which, inter alia, included them facing several health ailments due to them being senior citizens as well as their status in society, both of them being Doctors.[36] The Gujarat High Court, in the case of Krishna Kant v. State of Gujarat, while granting anticipatory bail to the applicant on the grounds that there was a prima-facie case made by the applicant, also highlighted in the judgment that the applicant was 77-years old, thereby subtly shedding light on this aspect of valid concern.[37] The Allahabad High Court, in the case of Swami Chinmiyanand Saraswati Pupil v. State of UP, while granting anticipatory bail to the applicant, laid pertinence on the argument made from the Applicant’s side that the applicant was 76 years old, and being of such fragile age, he was suffering from various cardiac and other ailments.[38]
CONCLUSION AND SUGGESTIONS
To sum up, the subject of anticipatory bail for senior citizens poses a multifaceted and complex dilemma within the Indian judicial system. Although the law provides protection from future arrest, granting anticipatory bail to senior citizens involves careful assessment of various factors. Judicial opinions on this subject differ greatly; some emphasise the seriousness of the offense over age-related issues, while others acknowledge the specific challenges that older people in the criminal justice system encounter.
The evolving jurisprudence surrounding anticipatory bail underscores the need for a balanced approach that prioritizes both individual rights and societal interests. There is a dire need to acknowledge the vulnerability of elderly individuals to the harsh realities of prison life; hence, old age of the applicant and related health concerns must be regarded as vital factors to be considered when adjudicating an anticipatory bail application. The same can be exemplified through recent cases discussed previously. This evolution in jurisprudence also indicates a growing recognition of the need to balance legal principles with human compassion, thereby ensuring that the quest for justice remains equitable and inclusive for all members of society, regardless of age.
Both the authors are third year law students at the Maharashtra National Law University, Mumbai.
[1] Code of Criminal Procedure, 1973, s. 438, No. 2, Acts of Parliament, 1974 (India).
[2] Id.
[3] Id.
[4] Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305.
[5] Balchand Jain v. State of M.P., (1976) 4 SCC 572.
[6] CrPC, supra note 1 at s. 438.
[7] Id. at s. 437.
[8] Sudesh Kumar Sharma, Dimensions of Judicial Discretion in Bail Matters, 22(3) JILI 351, 351-370 (1980).
[9] CrPC, supra note 1 at s. 438.
[10] Id. at s. 438.
[11] Semabhai Chaturbhai Patel v. State of Gujarat, 1977 Cri. LJ 1523.
[12] Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
[13] State of Maharashtra v. Nainmal Punjaji Shah, (1969) 3 SCC 904.
[14] Law Commission of India: Forty-first Report, Vol. I, p. 321 (1969).
[15] Pratibha Manchanda and Anr. v. State of Haryana and Anr., 2023 SCC OnLine SC 785.
[16] Gurbaksh Singh Sibbia, supra note 10.
[17] Siddharam Satlingappa Mhetre v. State of Maharashtra, 2010 SCC OnLine SC 1375.
[18] Sushila Aggarwal v. State (NCT of Delhi), 2018 SCC OnLine SC 531.
[19] Shubham Priyadarshi, Solving a Paradox: Grant of Pre-Arrest Bail to an Arrestee, SCC ONLINE TIMES (Jun. 4, 2023), https://www.scconline.com/blog/post/2023/06/04/solving-a-paradox-grant-of-pre-arrest-bail-to-an-arrestee/#:~:text=Additionally%2C%20the%20court%20which%20grants,the%20order%20will%20be%20effective.&text=As%20a%20result%2C%20even%20if,be%20arrested%20for%20another%20offence.
[20] INDIA CONST. art. 21.
[21] Siddharam Satlingappa Mhetre, supra note 17.
[22] Sukanya Shantha, Poor Medical Care for Prisoners Explains Why Number of Custodial Deaths is Only Rising, THE WIRE (Jan. 15, 2020), https://thewire.in/rights/prison-custodial-death-medical-care.
[23] Id.
[24] Sumit Kumar Singh, Elderly Inmates at Tihar Jail to Get Special Ward, INDIA TODAY (Feb. 28, 2014), https://www.indiatoday.in/india/north/story/delhi-tihar-jail-convicts-special-ward-old-inmates-183041-2014-02-28.
[25] Saumya Kalia, Counting Death’s in India’s Prisons, THE HINDU (Sept. 25, 2023), https://www.thehindu.com/news/national/explained-counting-deaths-in-indias-prisons/article67269343.ece.
[26] CrPC, supra note 1 at s. 438.
[27] Supra note 20.
[28] Areeb Uddin Ahmed, "Advanced age no guarantee of a person not indulging in criminal acts": Punjab & Haryana High Court rejects anticipatory bail plea of 95-year-old, BAR AND BENCH (Mar. 15, 2021), https://www.barandbench.com/news/litigation/punjab-and-haryana-high-court-anticipatory-bail-rejects-95-year-old.
[29] Gautam Navlakha v. NIA and Anr., 2021 SCC OnLine Bom 8013.
[30] Indian Penal Code, 1860, s. 377 (India).
[31] Protection of Children from Sexual Offences (POCSO) Act, 2012, s. 4, No. 32, Acts of Parliament, 2012 (India).
[32] CrPC, supra note 1 at s. 437.
[33] Eni v. State of Kerala, 2019 SCC OnLine Ker 1407.
[34] Id.; Bhumika Indulia, Ker HC | If no purpose is served by detaining an old aged accused, it is just and proper to grant bail with stringent conditions imposed, SCC ONLINE TIMES (May 10, 2019), https://www.scconline.com/blog/post/2019/05/10/ker-hc-if-no-purpose-is-served-by-detaining-an-old-aged-accused-it-is-just-and-proper-to-grant-bail-with-stringent-conditions-imposed/.
[35] Surender Sharma, Denying bail to elderly amounts to cruelty: Punjab and Haryana HC, HINDUSTAN TIMES (Apr. 15, 2023), https://www.hindustantimes.com/cities/chandigarh-news/punjab-and-haryana-high-court-grants-anticipatory-bail-to-80-year-old-accused-says-elderly-cannot-be-subjected-to-harsh-treatment-in-jail-101681499554227.html.
[36] Dr. Sudarshan Bhandari and Anr. v. State of M.P. and Ors., 2022 SCC OnLine MP 2783; Zeeshan Thomas, MP High Court Constitutes Special Bench Amid Vacation To Hear Plea For Transit Anticipatory Bail, Grants Relief To Senior Citizens, LIVELAW (Oct. 6, 2022), https://www.livelaw.in/news-updates/madhya-pradesh-high-court-transit-anticipatory-bail-application-senior-citizens-210960.
[37] Krishna Kant v. State of Gujarat, 2023 SCC OnLine Guj 3692.
[38] Swami Chinmiyanand Saraswati Pupil v. State of UP, 2022 SCC OnLine All 888; Ratna Singh, Allahabad High Court grants anticipatory bail to Swami Chinmayanand in 2011 rape case, BAR AND BENCH (Dec. 21, 2022), https://www.barandbench.com/news/litigation/allahabad-high-court-grants-anticipatory-bail-to-swami-chinmayananda-saraswati-in-2011-rape-case-to-furnish-personal-bond-of-1-lakh.
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