Rigid position on anticipatory bail taken earlier by the Appellate Division of the Supreme Court has been liberalised by laying down fresh guidelines in a recent judgement. As guidelines human considerations such as humiliation of arrest and suffering of family members if bail is refused have found place. These guidelines are to be welcome.
But more relaxation is necessary by weighing the supremacy of the fundamental rights over mere allegations in an FIR. An arrested person cannot be projected as criminal or to be regarded a fugitive from the law.
When a person surrenders voluntarily subjecting himself to the process of law, he is being law abiding. Before charge-sheet he is not an accused and presumed innocent.
 We all know how bail matter is infusing corruption in the judiciary eroding public confidence in the Constitution and the law. Without bail his family members suffer most, especially, if he is the bread earner. Such human empathy is much in short supply in the judiciary.
To help police, the constitutional liberty of the arrested person cannot be given a go by. This is what is the bitter reality. An innocent person is more helpless in our justice system. The police are all powerful. The government is also all powerful for the police power.
To be in prison before even charge-sheet has been filed is police justice. Because judicial justice demands imprisonment after the trial.
 In an earlier judgement of the Appellate Division Justice AHM Shamsuddin Choudhury Manik, who delivered the judgement, took a very harsh view about anticipatory bail without due consideration that a person coming for anticipatory bail against FIR is not an accused and must not be treated as a criminal.
In another judgement much maligned himself former Chief Justice Mr ABM Khairul Haque held that it is an offence to harbor a criminal meaning that the person is a criminal just because somebody has filed an FIR making allegations against him yet to be proved. In his view the person “should be handed over as a fugitive”. He further held if a fugitive surrenders before the High Court Division he may either be granted bail or be handed over to the police. In short, his Lordship negated the very concept of anticipatory bail.
His Lordship AHM Shamsuddin Choudhury Manik, in another judgement, directed that judges of the High Court Division must go through the FIR meticulously without resorting to arbitrary consideration. The judges must also keep in mind that police investigation is not to be impeded. In other words a private individual’s statement in FIR must have all the importance to justify refusing bail before police investigation finds any substance in the allegation.
In neither of the judgements the importance of personal liberty guaranteed by the Constitution or the universal assumption of law that one is innocent before found guilty by a court of law had no relevance to their Lordships. The police power must have all the sanctity and protection though police are not independent of political pressure.
It is also not in consonance with one’s right to liberty that for the purpose of helping the police investigation a citizen of a free country has to suffer imprisonment. Certainly such thinking on the part of the judges is most unjudge like. They also did not care to remember that once a warrant is issued High Court Division does not consider anticipatory bail so the need of handing him over to police should not be so urgent a necessity. The courts are choked with false and political cases because bail is easily refused and persons can be more easily locked up.
The latest judgement of the Appellate Division of the Supreme Court on anticipatory bail delivered by Justice Hasan Foez Siddique is certainly more humane and liberal. One of their Lordships guidelines says:
“Whether the accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is be remembered that worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community.”
In another guideline their Lordships observed: “The anticipatory bail granted by the court should ordinarily be continued not more than 8 (eight) weeks and shall not continue after submission of charge-sheet —.” For the reason that he is not even an accused before charge, there is cogent reason to grant him bail till charge-sheet is filed. There is such indication in the words of the guideline. We must be a free country free for enjoyment of our fundamental rights.
Our mind-set of the pre-fundamental rights days has to be changed to protect the people’s rights. The obligation of the judges to protect the Constitution means nothing if not to protect fundamental rights of the arrested person. An FIR is not above the Constitution that it can be used to deny one’s personal liberty to be free and defend himself unrestrained.
There is scope for taking more liberal views on bail when criminal cases are used for political victimisation and police are politicised.
It is easy for a person to make any grave allegation in FIR if that helps to humiliate another and make him suffer in jail. So it means nothing to seriously scrutinise the FIR.
The consistent view this paper has taken on bail is that the constitutional freedoms cannot be so easily flouted by filing an FIR.
Protecting personal liberty and saving one’s freedom is a constitutional obligation of the courts. This obligation is often forgotten and an FIR named person is presumed a criminal.
We expressed as forcefully as we could that the judiciary must be saved from greedy politics. We cannot ignore the huge number of political motivated cases against political opponents for keeping them inactive politically.
If the FIR victims were released on bail and asking the police to produce evidence for trial, then surely the judiciary will not be burdened with political cases.
Police are used politically for initiating false criminal cases, then the government takes cover of the courts to say the courts are not granting bail, this is rule of law.
The judiciary thus inflicts damage on itself for the politics of others. In our country politics through court cases must be stopped. Only the Supreme Court can do so as protector of the Constitution and fundamental rights.
We must save the judiciary from abusing police power and court cases by treating bail as one’s part of fundamental rights not to be easily denied.
As long as the Constitution exists in some form, both as judges and lawyers, we must try to save the country, insisting one one’s fundamental rights from the brink of lawless chaos descending in bloody violence.
