After the insertion of Section 498-A1 of the Code of Criminal Procedure, 1898 ("CrPC") if the accused, seeking pre-arrest bail, is not present before the Court, the Court is not authorized to grant bail to such an accused and therefore, the petition is liable to be dismissed in the light of the said statutory provision.
Section 498-A, CrPC creates a statutory fetter or a statutory pre-condition requiring the presence of the petitioner in person in Court for the exercise of jurisdiction by the court for granting pre-arrest bail. In case the petitioner (accused) is not personally present in Court, the Court is not authorized to grant him bail and the petition is to be dismissed for his lack of presence in Court. However, in case some explanation is furnished for his non-appearance, the Court may, if it finds that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period. The Court cannot, in the absence of the personal appearance of the petitioner, travel further into the case and examine the merits of the case. In fact the examination of the merits of the case in the absence of the accused totally defeats the intent and purpose of the aforementioned statutory provision. This is because once the Court proceeds to examine the merits of the case, then the Court has the option to either dismiss or allow the bail petition, while under Section 498-A CrPC the Court is not authorized to admit the accused to bail in his absence.
Before the addition of Section 498-A in the CrPC, the view of the High Courts was that once a petition for pre-arrest bail is admitted for hearing and notice is given to State, it has to be decided on merits notwithstanding the absence of the petitioner on the date fixed for hearing the petition. However, after the addition of Section 498-A in the CrPC, there are divergent views of the High Courts, on this point: one set of judgments still retain to the said view, while the other set of cases hold the view that the petition for pre-arrest bail is to be dismissed if the petitioner is not present in Court on the date fixed for hearing the petition and it is not be decided on merits in his absence, unless the Court exempts his presence. We approve the judgments of the High Courts noted above, which have considered the change in the legal position after addition of Section 498-A in the CrPC and disapprove those that still retain the earlier view as they have not taken account of the true import and meaning of Section 498-A CrPC.
It is also clarified that in case the petition is dismissed for non-appearance of the accused in a pre-arrest bail matter under Section 498-A CrPC, the petitioner can file a fresh bail petition before the same Court provided that he furnishes sufficient explanation for his non-appearance in the earlier bail petition and the Court is satisfied with his said explanation. But if he fails to furnish any satisfactory explanation, his second bail petition is liable to be dismissed on account of his conduct of misusing the process of Court disentitling him to the grant of discretionary relief of pre-arrest bail8. In the present case, the High Court could not have dismissed the petition on merits, in addition to dismissing the same for non-prosecution due to the personal absence of the petitioner under Section 498-A CrPC; therefore, the observations of the High Court regarding the merits of the case are not sustainable and hereby set aside. The petitioners are free to file a fresh bail petition, if so advised, before the High Court by giving explanation for their absence before the Court in their first bail petition and if the Court is satisfied with their explanation, it would decide their petition on merits.
It is also clarified that ad interim bail granted in a prearrest application on the first hearing is to simply ensure that the petitioner is present on all the subsequent dates of hearing in the pre-arrest bail matter. Petitioner’s presence is, therefore, required throughout the proceedings of the pre-arrest bail petition and the fact that he appeared on the first date when ad interim bail was granted does not in any manner lessen the rigours of Section 498A CrPC or absolve the responsibility of the accused from appearing in person before the court.
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