Anticipatory Bail: Understanding Concept Through Recent Case Of MLA Jagan Moorthy

The concept of anticipatory bail is for every person who fears accusation, detention or arrest in lieu of a non-bailable offence. Anticipatory bail is a prior remedy and an application for bail for an offence in which the punishment is that of imprisonment. In the newly enforced Bhartiya Nagarik Suraksha Sanhita, 2023, Section 482 provides for anticipatory, whereas, earlier, Section 438 of the Criminal Procedure Code, 1973 provided for the same. The power to grant anticipatory bail is only vested in a Sessions Court or the High Court. A Magistrate does not have power to grant anticipatory bail.

Factors and Conditions

It is an accepted jurisprudence that anticipatory is not a right. It is granted on the case to case basis only. The eligible judicial platforms consider each and every case and consider certain factors which are:

• Nature of offence
• Gravity of offence
• Facts of the case
• Previous criminal record of the accused
• Possibility of the accused to abscond
• Possibility of tampering of evidence
• Possibility of tainting the investigation or witnesses

In a recent case, the Supreme Court set aside a Jharkhand High Court order in which the said High Court put a condition to grant anticipatory bail. The court in the case involving dowry put a condition to resume conjugal life for granting anticipatory bail. This set the jurisprudence that the courts cannot grant a conditional anticipatory bail.

There are certain conditions which accompany the grant of anticipatory bail and that are with respect to the justice dispensation framework. These mandatory conditions which the courts impose are:

• Cooperation with the system and investigation
• On call availability for interrogation
• Out of country or out of jurisdictional area travel with court's permission
• No act of evidence tampering

The courts can also terminate the anticipatory bail if they find the possibility of not following the aforementioned conditions or where there is even a slight chance of it going against the justice dispensation of the impugned case.

Jagan Moorthy Case

In a recent case which involved a Member of Legislative Assembly (“MLA”) of Tamil Nadu in the abduction of a minor, the Supreme Court granted an anticipatory bail which was earlier denied by the Madras High Court. The said High Court rejected the plea of anticipatory bail on the basis of the prima facie evidence of Jagan Moorthy's involvement in the abduction of the minor.

The facts of the case involve the alleged abduction of a minor boy whose elder brother married and eloped with a girl, resident of Theni district. The case was filed by the mother of the minor who was supposedly abducted by the said girl's family while searching her. During the police investigation, the said minor was found near the Perumbakkam bus stand.

The accused filed a special leave petition against the judgement of the Madras High Court. A Division Bench of the Supreme Court overturned the Madras High Court's decision and granted anticipatory bail to the accused. Jagan Moorthy based his case on the fact that there has been no evidence to show that the said minor was recovered from his possession.

The Supreme Court based this decision on the basis of the following reasons:

• The accused MLA cooperated throughout the investigation of the case
• There has been no criminal record of the said accused MLA
• The fact that the case was based on the confession of co-accused suggesting mala-fide intentions
• No direct evidence of the involvement of MLA as the minor was not found from the control of the said MLA
• Basing the case on the interaction of the accused MLA with one of the parties

The Supreme Court bench also held that the said accused should have been released on a personal bond of INR 25,000 with a condition to fully cooperate in the investigation process without an attempt to tamper evidences or influence witnesses. The Court further stated that the matter needed judicial consideration, however, the detention or arrest of the accused MLA is not a requirement during the same, providing his readiness to extend support to the investigation process.

The accused MLA in the case discussed above was granted anticipatory bail because all the elements of anticipatory bail which are adjudged by the courts have been fulfilled and were involved. The very essence of the concept of the anticipatory bail is to extend protection to individuals who are expected to be dragged in false accusations and where the accused undertakes to cooperate with the process of investigation.

The anticipatory bail is a medium to ensure that any person is not detained due to any exaggerated allegations abusing the power of law. Where the evidence is not directly linked to the accused or there is no need of detention of the accused or wherein the allegations seem disputed, the remedy of anticipatory bail helps in upholding the justice and liberty of the individuals.

Author: Adv. Varun Singh, Founder, Foresight Law Offices India. Views are personal.