Legal Remedies available to a Accused in case of Issuance of a Bailable Warrant: Lawyers Advice
Under Section 71 of the Code of Criminal Procedure (Cr.P.C), in the case a court of law is issuing a warrant for arrest against any person, then such court based upon its circumspection endorse upon the warrant that in the case such person implements a bond with ample sureties for his presence before the court at a particular time. Then, unless otherwise ordered by the court, the concerned officer to whom such warrant is directed shall take the security and subsequently release the person from the detention. Furthermore, the concerned officer needs to forward such security to the court.
It may be noted that, in order to free a person with a bailable warrant against him, few points are to be properly considered. These are namely,
- Nature of the Complaint,
- Whether there is some danger to the personal liberty of the concerned person in the case of an inappropriate warrant,
- Enormity of the charges,
- Societal interests.
Filing Application under Section 482 of the Code of Criminal Procedure Prevents Abuse of Legal Procedure:-
A Bailable warrant can be issued in both bailable and non-bailable offences. In Vikas v. State of Rajasthan, Criminal Appeal No. 1190 of 2013, it was held by the Hon’ble Supreme Court that, the court of law in most circumstances in cases comprising complaint at the first instance should prefer bailable warrant letting down which a non-bailable warrant should be issued. Now, before issuing the warrant or summons, it is imperative upon the court to consider the material facts and nature of the complaint made against the person. Issuing warrants inappropriately without proper circumspection and non-sparingly, further failing to place a balance between one’s personal liberty prescribed under Article 21 and overall societal interest is purely unlawful. It is important for the High Court to find out the lawfulness of the direction made by the Magistrate both on the grounds of law as well as facts. Now, in order to prevent abuse of legal procedure, registration of application under Section 482 of the Code of Criminal Procedure will be beneficial. The given section gives the High Court, the power to secure the ends of justice and prevent legal abuse.
Cancellation of the Inappropriate Warrant is based upon the Merits of the Matter:-
It may be noted that the cancellation of inappropriate warrant can be done without the physical presence of the accused. In Arun Kumar v. the State of Maharashtra, Writ Petition No. 4429 of 2013, the Hon’ble Bombay High Court in rightly held that for the cancellation of the warrant, there is no such law that when the application for the same is made the physical presence of the accused it necessary. Cancellation of a warrant is purely based upon the merits of the case.
Affirmative Prospects of Anticipatory Bail in cases with Bailable Warrant:-
In order to protect the liberty of the concerned person, it is important to advise him on the prospects of getting anticipatory bail. Under Section 438 of the Code of Criminal Procedure, when a person has a reason to believe that he may be arrested on the allegations of perpetrating a non-bailable offence, the same may apply for an order seeking bail. It may be noted that authority’s failure to grant may result in serious violation of an individual’s fundamental right prescribed under Article 21 of the Constitution. In Badresh Bipinbhai Seth v. State of Gujarat, Criminal Appeal Number 1134-1135 of 2015, the Hon’ble Supreme Court of India precisely held that the provision of anticipatory bail described under Section 438 of the Code of Criminal Procedure is based upon the concept of Personal Liberty described under Article 21 of the Constitution of India. Therefore, it is important to interpret Section 438 of the Code of Criminal Procedure in consonance with Article 21 of the Constitution. Anticipatory bail is basically prior to arrest legal procedure which orders that in case the person in whose favour the same has been issued is arrested based upon the allegation in the relation of which the orders has been issued, shall be released on bail.
A Person Post-Arrest cannot be denied Bail subject to Certain Conditions:-
Under Section 436, in the case, the arrested person is not accused of any non-bailable offences. Then, as soon as the person arrested proposes to give bail, the concerned police officer or the court of law are bound to give him the bail based upon its terms. It may be noted that the given section covers every case where the security proceedings have been initiated under chapter eight of the Code of Criminal Procedure. Also, those cases of arrests and confinements which do not cover non-bailable offences.
Amount of Bond and Violation of the Provision related to Grant of Bail:-
A Person’s right to be liberated on bail under the aforementioned section cannot be nullified merely indirectly by keeping the amount of bond too expensive. This bond is to be furnished by the person seeking liberation. Now in cases involving expensive bail bond, the accused must immediately move an application for reconsidering the matter and consequently helping the court to possibly grant the bail. Now, this may not include the magistrate’s order since with changing time, factors relating to the matters might have altered and this might lead to whole new consideration. Under Section 440(2) of the Code of Criminal Procedure, it has been categorically provided that bail amount shall be fixed based upon the situation encompassing the case and also the same should not be excessive. Although there is no such provision for appeal against the directions repudiating bail under Section 436(1) of the Code of Criminal Procedure, both High Court and the Court of Session can be moved under Section 439 for bail. Further, repudiating bail violating Section 436 of the Code of Criminal Procedure will result in illegitimate confinement. This might subsequently hold the concerned Police officer guilty for wrongful detention under Section 342 of the Indian Penal Code.
The concept of Personal Liberty enshrined in Article 21 of the Constitution of India is the deciding factor in cases involving both bailable and non-bailable warrant. A person cannot be deprived of his personal liberty at the hands of the judiciary. Issuance of inappropriate warrants with ill-consideration of the nature and gravity of the offence made out in the complaint is harmful to the overall interest and liberty of the person. A person with a bailable warrant is liable to anticipatory bail as explained with case law in the earlier paragraph. Also, he cannot be denied bail under the given section by both Police and the judiciary based on the terms of the bail.
Authored By: Adv. Anant Sharma & Aniket Pandey