Interim Bail under the BNSS 2023

📖 Lal Kamlendra Pratap Singh v. State of Uttar Pradesh, (2009) 4 SCC 437

Facts: An applicant apprehending arrest was without a remedy by way of anticipatory bail, that provision having been omitted in the State concerned, and the practice of the courts was to require him to surrender before any relief could be considered. The Supreme Court considered what a court should do in such a situation and, more generally, while a bail application is pending.

Held: The Supreme Court held that the courts should ordinarily grant interim bail pending the final disposal of a bail application, since a refusal of interim protection can render the eventual order worthless — the applicant being taken into custody in the meantime. The Court approved the view that, even where anticipatory bail as such is not available, a person apprehending arrest may approach the High Court under Article 226 or the Court of Session or High Court under the ordinary bail provisions, and that such courts may, in an appropriate case, grant interim bail pending the disposal of the application. The Court also emphasised that arrest is not to be made merely because it is lawful: the existence of a power to arrest is one thing and the justification for its exercise quite another, and an officer must be able to justify the necessity of the arrest.

Ratio: Courts should ordinarily grant interim bail pending the final disposal of a bail application, since refusing interim protection can render the eventual order worthless. Arrest is not to be made merely because it is lawful; its necessity must be justified.

📖 Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453

Facts: The provision for anticipatory bail having been omitted in the State concerned, persons apprehending arrest applied to the High Court under Article 226 for protection. The Supreme Court was required to decide whether such a remedy is available, and on what terms, where the legislature has deliberately withdrawn the statutory relief.

Held: The Supreme Court held that although the statutory remedy of anticipatory bail is not available in such a State, the power of the High Court under Article 226 is a constitutional power which cannot be taken away by the omission of a statutory provision. But it held that the power must be exercised very sparingly and only in rare and exceptional cases — where the Court is satisfied that the case is one of gross injustice or of abuse of the process of law, or that the accusation is wholly unfounded and mala fide. It must not be used to restore by the back door the very remedy the legislature has deliberately withdrawn, and the ordinary course remains that a person apprehending arrest should surrender and apply for regular bail. The Court held that where such protection is granted it should be for a limited period, and ordinarily on the terms that the applicant cooperate with the investigation.

Ratio: Where anticipatory bail is not available, the High Court’s power under Article 226 remains and cannot be removed by a statutory omission. But it is exercised very sparingly, in rare and exceptional cases, and not so as to restore by the back door a remedy the legislature has withdrawn.

⚠ Interim bail and interim protection under Article 226

Interim bail is granted by a court seised of a bail application, to hold the position until it can decide. Its source is the power to grant the final relief.

Interim protection under Article 226 is granted by the High Court where the statutory remedy is unavailable altogether. Its source is the Constitution, and it survives the omission of the statutory provision.

The two are not interchangeable. The first is routine and should ordinarily be granted where refusing it would defeat the application. The second is rare and exceptional, confined to gross injustice or abuse of process, and must not be used to reinstate a remedy the legislature has taken away.

In both, the protection is limited in time and ordinarily carries the condition that the applicant cooperate with the investigation.

⚠ The point most often overlooked

An order of interim bail lapses when the application is disposed of. It does not survive the order it was made to protect.

So a person whose anticipatory bail application is dismissed is not protected by the interim order that ran until then. He is liable to be arrested from the moment of dismissal, and must surrender or move a higher court at once.

Where a higher court is to be approached, the correct course is to apply to the court dismissing the application for a short continuation of the interim protection to enable that approach — which is ordinarily granted where the application was not frivolous, but which must be asked for.

And an interim order decides nothing. The fact that interim protection was granted is no indication that the final relief will follow, and a court hearing the application finally is not bound by the view it took at the interim stage.

The position stated shortly

1. Interim bail is not named in the Sanhita. No section uses the expression, and the power is nowhere conferred in terms.

2. It flows from the power to grant the final relief: a court which may release a person may protect him meanwhile, since otherwise its jurisdiction could be defeated before it could be exercised.

3. The problem it solves: an arrest before the hearing renders an anticipatory bail application infructuous, there being no longer any apprehension of arrest but only a fact of custody.

4. Courts should ordinarily grant interim bail pending the final disposal of a bail application: Lal Kamlendra Pratap Singh.

5. The conditions are a real risk of arrest before the hearing, a prima facie case for the relief sought, and that refusal would render the application pointless.

6. It is short-term and provisional, granted until a named date or the disposal of the application, and ordinarily on the same conditions as the final relief.

7. It decides nothing about the merits, and a court hearing the application finally is not bound by the view it took at the interim stage.

8. It lapses on disposal. A person whose application is dismissed is not protected by the interim order, and must surrender or move a higher court at once.

9. Where anticipatory bail is not available at all, the High Court’s power under Article 226 survives, but is exercised very sparingly and only in rare and exceptional cases: Hema Mishra.

10. That power must not be used to restore by the back door a remedy the legislature has deliberately withdrawn.