Right To Get Anticipatory Bail Is Not Any Fundamental Right: Punjab and Haryana High Court

It has to be remarked right at the outset that in a latest, landmark and laudable judgment titled Sanjiv Sharma @ Sanjeev Sharma Vs State of Haryana in CRM-M No. 21859 of 2019 delivered by the Punjab and Haryana High Court on July 3, 2019, it has been held loud and clear that right to get anticipatory bail is not any fundamental right. This sharp observation was made by the Punjab and Haryana High Court while rejecting an application filed by a man involved in a case registered under the Narcotics Drugs and Psychotropic Substances Act, 1985. Justice Rajbir Sehrawat who authored this judgment (oral) held very clearly that the statutory power of granting pre-arrest bail is so extraordinary that it is not even available in some parts of the country! Very rightly so!

                                        To start with, the ball is set rolling in the first para of this noteworthy judgment wherein it is pointed out that, “The present petition has been filed by the petitioner under Section 438 of Cr.P.C. for grant of anticipatory bail in case FIR No. 0120 dated 08-04-2019registered under Section 15/61 Narcotics Drugs & Psychotropic Substances Act, 1985 at Police Station Naraingarh, District Ambala.”

                              Moving on, it is then elaborated upon in the next para that, “The FIR in the present case came to be registered on the statement of Inspector Keval Singh, CIA Staff, Naraingarh in which it was stated that he had received secret information that one red coloured closed body Canter, bearing registration No. HR 68-B-8648 was standing on kacha road leading to Kala Amb towards Ruchra factory, whose driver is stopping many truck drivers on the way and he is having some kind of secret conversation with them. This led the police officers to have suspicion that the said driver was having some contraband substance in his possession. The information in this regard was sent to Mr. Amit Kumar, HPS, Deputy Superintendent of Police, Naraingarh for information. On the said secret information, the above said inspector along with his companion police officials reached the spot and on reaching there, the police party found that red coloured closed body Canter bearing registration number as stated above, was parked on the road and a person was found sitting on the driver seat. The driver was asked to come down and he disclosed his name as Ravinder Singh alias Jonku. After having been given due notice under Section 50 of the NDPS Act, the search of the vehicle was conducted in the presence of Mr. Amit Kumar, Deputy Superintendent of Police, Naraingarh. During the search, apart from some small drums which were loaded in the Canter, four plastic bags were found; whose mouth had been sealed. Out of these, two were found to be of white colour and two were of black colour. On being questioned, the said driver Ravinder Singh disclosed that these plastic bags were having poppy husk. Accordingly, the bags were  taken out from the Canter. On being weighed, total quantity of poppy husk found in these bags was 1 quintal and 60 kilograms. Samples were drawn out of that. On further questioning, the registration certificate of the Canter was found. Canter was found to be owned by one Himanshu Bhalla, resident of Panchkula. He was also joined in the investigation, from whom it came out that 200 drums were loaded in the Canter from Mumbai and were to be taken to Mukhmajra, Himachal Pradesh. Accordingly, the FIR was registered.”

                                      Going forward, it is then pointed out in the next para that, “During the investigation above said Ravinder Singh disclosed that he had got the above said poppy husk from the present petitioner. Hence, the name of the petitioner also came to be involved in this case.”

                                   To put things in perspective, it is then stated in the next para that, “While arguing the case, the learned counsel for the petitioner has submitted that, admittedly, the petitioner was not found to be present on the spot. Nothing has been recovered from him. His name has been included in the case only on the basis of the disclosure statement of the co-accused, from whom the recovery has been effected. Still further, it is submitted that police have tried to change the nature of the case, by substituting the name of the petitioner in place of some other person, who was allegedly named originally by the co-accused as the supplier of the drugs. The counsel for the petitioner has also relied upon an judgment passed by a coordinate Bench of this court in Jaz Singh versus State of Haryana, 2016 (1) RCR (Criminal) 454, to contend that since the petitioner was not found at the spot, therefore, he is entitled to grant of anticipatory bail.”

                                    On the contrary, it is then pointed out in the next para that, “On the other hand, learned counsel for the State on being instructed by SI Krishan Lal, CIA Staff, Naraingarh, submits that sufficient material has been found against the petitioner to justify his custodial interrogation. It is disputed by counsel for the State that anybody else was named by the co-accused. There was no substitution of name of the petitioner in place of somebody else. It is further submitted by counsel for the State that, in fact, the co-accused has named the supplier as Billa referring him as owner of the dhaba. The name Billa is referable only to the present petitioner and nobody else. It is also pointed out that the present petitioner has been pretending to be the owner of the dhabha to ensure that his supplies are taken in appropriate manner by the drivers of the trucks, who were having stop-over at this Dhaba. To justify the custodial interrogation, learned counsel for the State has pointed out that during the investigation conducted so far, besides the disclosure statement of the co-accused, the call details taken by the investigating officer, have also shown a connection of the petitioner with the co-accused arrested for drug trafficking in this case. Learned State counsel has pointed out that before the date of occurrence itself, the petitioner has been found to have talked with co-accused on mobile phone. Therefore, the petitioner cannot claim that he is not involved in the case. It is also submitted by learned counsel for the State that the petitioner is having another case of similar nature as well, registered against him at different police station.”

                       Simply put, the next para then states that, “To counter the arguments of learned State counsel, learned counsel for the petitioner has submitted that another case was also of the same date, as is of the present case.”

                               Most importantly, it is then very rightly underscored in the next para while holding that, “No doubt, the accused as a citizen has a fundamental right to life and liberty. However, that right to life and liberty can very well be curtailed in accordance with the procedure established by law. As per the procedure prescribed for Criminal Administration of Justice, the normal procedure for curtailing the life and liberty of the accused, Cr.P.C. prescribes that the Investigating Officer can arrest an accused even without warrant and without assistance/interference of the Court. However, to ensure that a person is not unduly harassed, the circumstances are leading, predominantly towards ex facie innocence of the accused, the Courts have been given special and extraordinary power under Section 438 Cr.P.C. This statutory power of granting pre-arrest bail is so extraordinary that it is not even available in all parts of the country; and even through-out the country qua some offences under special statutes. Hence, right to get anticipatory bail is not any fundamental right. The provision of Section 438 Cr.P.C. provides only a remedy to an accused and leaves the extent of right to liberty to be decided by the Court.”

                        As it turned out, it is then observed in the next para that, “In the present case this court finds that a person has been arrested with a very heavy quantity of the contraband. He has specifically named the petitioner as the person who has supplied this contraband to him. There is nothing on record, as of now, to suggest that the petitioner has no connection with the said co-accused, in any manner whatsoever. Rather as per the record of the police the petitioner is alleged to have repeated contacts with the co-accused from whom the recovery is stated to have been made. Therefore, this Court does not find any mitigating circumstance, showing ex-facie innocence of the accused, qua the allegations levelled against him. Moreover, since the police claims to have collected some material relatable to the petitioner qua the offence, therefore, this court finds substance in the argument of the learned counsel for the State that the police deserve to be given an opportunity to investigate the case in the manner considered appropriate by it. Since the petitioner has been alleged to be in repeated contact with the co-accused, from whom the recovery has been made, this court finds that protecting the petitioner against his arrest at this stage would hamper the free and fair investigation of the case.”

                                      As things stand, it is then held in the next para that, “Although, the counsel for the petitioner has relied upon the judgment in the case of Jaz Singh (supra), however, this court finds that the facts of the present case are totally distinguishable as compared to the facts of the judgment in aforesaid case. In that case the positive claim of the petitioner was that he had engaged the co-accused as a driver on the truck owned by him and that driver had mis-conducted himself leading to the offence. He further argued that he was not even present at the spot when the recovery was made by the police. Beyond the fact that the person was owner of the vehicle in that case, there was nothing on record to suggest that he was involved in the offence. However, in the present case the police file contains definite incriminating material which can lead to a positive connection of the petitioner with the consignment allegedly recovered from the co-accused.”

                                In conclusion, it is then finally held in the last para that, “In view of the above, but without commenting any further on merits of the case, this court does not find any ground to grant anticipatory bail to the petitioner. Therefore, the present petition for anticipatory bail is dismissed.”

                                  All said and done, this latest, landmark and extremely commendable judgment by the Punjab and Haryana High Court seeks to make it absolutely clear that right to get anticipatory bail is not any fundamental right. At the risk of repetition, it must be again pointed out that it is emphatically asserted in this noteworthy judgment that the statutory power of granting pre-arrest bail is so extraordinary that it is not even available in some parts of the country. It is also very rightly held that it is the court which has to take the final call and decide finally on whether to grant or not to grant an anticipatory bail to the accused! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Maladministration & Sexism: RGNUL Patiala Students’ Protest Continues On Day 3

The students of Rajiv Gandhi National University of Law (RGNUL), Patiala took to the University gates this morning, as their protests against the college administration entered day three. The protests had begun on Friday against the “arbitrary and wrongful” suspension of six hostel inmates allegedly after the boys raised their voice against the quality of food being served in their hostel. The suspension order was passed by Administrative Officer SP Singh. Students have, however, since claimed this order to be invalid, as it was issued without a proper hearing and in the absence of Vice-Chancellor Dr Paramjit Jaswal.

In a statement, the students claim that the suspended students “were subject to degrading treatment constituting a deprivation of their Right to Privacy” as their mobile phones were forcibly confiscated and their private conversations read. Thereafter, in what seemed like a retelling of the numerous protests in National Law Schools over the past year, the protests snowballed into an outcry over broader student grievances concerning maladministration in the college.

The students’ statement proceeds to accuse the Administrative Officer of the University of making sexually coloured remarks and violating the dignity of women in the college. It then not just demands an enquiry into his actions but also his removal subsequently, stating, “We submit respectfully that the mandate of the equity of sexes at an academic institution, is of utmost pertinence. The University, in spurts of cosmetic commitment to this equality, applies to rights, a regressive standard, arbitrarily taking away from students their liberty. We appeal to you that a decision, that effectively nullifies the right of free movement and access to academic facilities must not be the byproduct of this review.

” Broadly, the students also make the following demands:

  • Legal recognition for the RGNUL Student Association
  • Scrapping of discriminatory implementation of in-time restrictions, highlighting, for instance, the fact that the library is restricted for women after 9 pm while the boys are allowed to use the facilities till 1 am.
  • Uniformity in rules regarding the requirement to obtain a leave pass.

While RGNUL Chancellor and Chief Justice of the Punjab and Haryana High Court, Justice Krishna Murari was expected to meet the students on Sunday, he failed to make a visit. Instead, Justice Mahesh Grover, the third senior-most judge of the Punjab and Haryana High Court arrived in the campus, in a bid to hold discussions with protesting students. However, the students have decided to continue their protests, since they have not received any written assurances as of yet that any of their demands will be met.

Support pouring in from students across the country Meanwhile, various students bodies throughout the country have expressed solidarity with the RGNUL students. A statement issued by the Student Bar Association (SBA) of the National Law School on India University (NLSIU), Bangalore said, “We empathise with the students of RGNUL and stand with them in their protest against the unjust acts of their administration…we stand in complete solidarity with the student body at RGNUL and wholeheartedly support their courage and decision. We support their sincere efforts to stand up against the regressive and capricious behaviour of their administration.” It also took the opportunity to emphasise on its previous statement calling for nationalisation and grant of Institutes of National Importance status to NLUs to ensure centralization of administration and accountable systems across NLUs.

Another statement issued by the Law Students Union, Punjab University said, “We, the LSU condemn the authoritative and dictatorial attitude of the RGNUL authorities and stand in complete solidarity with the protesting students of RGNUL, Patiala who have come together on a single platform to raise genuine issues of the students which have a direct concern with “Right to Life and Liberty” as enshrined in Article 21 of the Indian Constitution.

We hereby extend our full support and cooperation to our protesting fellow mates who have shown grit and courage to oppose the tyrannical attitude of the RGNUL authorities.” The NLU student consortium also chimed in, with a strong statement condemning the “administrative misdemeanour, miscarriage of justice, red-tapism and sexism”.

The statement reads: “We empathise with the students of RGNUL and their struggle against the draconian actions of their administration. It is agonising to witness the unreasonable and discriminatory campus and library curfew, the sheer opaqueness and the consequent lack of accountability on part of the administration for their actions and most importantly, the attempts made to thwart the materialization of any Student Collective that may become the voice of the students and the wrongful suspension of six students.

It is truly disheartening to bear witness to the callous response of the authorities to peacefully protesting students. We also extend our solidarity to the students of all the other NLUs who are confronting similar draconian regulations, where the importance of dissent and the spirit of questioning and accountability have been trampled on by those exercising unchecked power.” Besides, RGNUL’s alumni association sent in a representation to the college’s General Council, lending its support to the demand for an enquiry into the grievances raised by the students.