Tamil Nadu

“Grant anticipatory bail without limiting operation to specified period”

Special Correspondent

CHENNAI: The High Court and sessions courts in Tamil Nadu shall grant anticipatory bail orders without limiting the operation of the order to a specified period, a Full Bench of the Madras High Court has ruled.

The Bench, comprising Justice R. Balasubramanian, Justice S.K. Krishnan and Justice R. Regupathi, passed the order on Wednesday, on a matter referred to it through an administrative order by Chief Justice A.P. Shah on June 29.

It all began when a single judge sitting in the Madurai Bench of the court granted anticipatory bail to two persons from Sivaganga district, but said the order would apply only for a limited period.

When advocates sought the order without any period specified, the single judge pointed to an “apparent conflict” in the judgments of the Supreme Court and directed the Registry to place the matter before the Chief Justice to be posted before a Division Bench.

The issue was later referred to the Full Bench.

The Bench heard the submissions of senior counsel R. Shanmugasundaram, Public Prosecutor Raja Ilango, Additional Public Prosecutor N.R. Elango and senior counsel B. Sriramulu, who had been asked to assist the court as amicus curiae.

The judges said all the advocates were united in their submission that anticipatory bail, if granted, should be granted for an unlimited period and it should not be restricted to any particular tenure. They also agreed that a Constitution Bench’s ruling in the Shri Gurubaksh Singh Sibbia case and five other judgments delivered later were at variance with each other.

However, the amendment to Section 438 of Code of Criminal Procedure concerning anticipatory bail was yet to be notified in Tamil Nadu. Therefore, if the unamended section was taken into account, then the Constitution Bench judgment of the apex court alone would prevail over the later judgments, they said.

Concurring with the submissions, the Bench cited two Supreme Court judgments on the Law of Precedents and said the opinions expressed by larger benches of the apex court would be followed by other courts in preference to those expressed by smaller benches.

“It is clear that the High Court has to follow the procedure indicated therein. If that procedure is followed, then this court has no doubt at all that it has to follow the Constitution Bench judgment of the Supreme Court. The Supreme Court has emphasized that the normal rule should be not to limit the operation of the order in relation to a period of time,” the Full Bench said.

© Copyright 2000 - 2009 The Hindu