Article
In
its 41st report, the Law Committee recommended to include the
procedure for giving anticipatory bail in criminal law. Accordingly
Section 438 was included in Criminal Procedure Code, which
deals with
giving anticipatory bail by Court in anticipation of arrest on
accusation of having committed a non bailable offence. The opposite
party is required to be given notice by the Court on receipt of
anticipatory bail. The opposite party can contest the case before the
Court. The anticipatory bail is a direction to release a person on
bail, issued even before the person is arrested.
The High Court or the Court of Sessions may impose such conditions as it thinks fit including-
A condition that the person shall make himself available for interrogation by the police officer as and when required;
A
condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to the court
or to any police officer;
A condition that the person shall not leave India without the previous permission of the court.
Appeal
may be filed against the rejection of anticipatory bail. The Court may
cancel the bail issued on the circumstances of case. There is much
litigation on the grant of anticipatory bail.
The
Supreme Court in ‘Bhardresh Bibinbhai Sheth V. State of Gujarat and
other’ – 2016 (2) TMI 416 - SUPREME COURT the Supreme Court laid down
the principles for grant of anticipatory bail as detailed below:
The
complaint filed against the accused needs to be thoroughly examined,
including the aspect whether the complainant has filed a false or
frivolous complaint on earlier occasion. The court should also examine
the fact where there is family dispute between the accused and the
complainant and the complainant must be clearly told that if the
complaint is found to be false or frivolous, then strict action will be
taken against him in accordance with law. If the connivance between
the complainant and the investigating officer is established then action
be taken against the investigating officer in accordance with law;
The
gravity of charge and the exact role of the accused must be properly
comprehended. Before arrest, the arresting Officer must record the
valid reasons which have led to the arrest of the accused in the case
diary. In exceptional cases, the reasons could be recorded immediately
after the arrest, so that while dealing with the bail application, the
remarks and observations of the arresting officer can also be properly
evaluated by the Court;
It is imperative for the courts to
carefully and with meticulous precision evaluate the facts of the case.
The discretion to grant bail must be exercised on the basis of
available material and the facts of the particular case. In cases
where the court is of the considered view that the accused has joined
the investigation and he is fully co-operating the investigating agency
and is not likely to abscond, in that event, custodial interrogation
should be avoided. A great ignominy, humiliation and disgrace is
attached to arrest. Arrest leads to many serious consequences not only
for the accused but for the entire family and at times for the entire
community. Most people do not make any distinction between arrest at a
pre-conviction stage or post-conviction stage;
There is no
justification for reading into Section 438 of CrPC the limitations
mentioned in Section 437 CrPC. The plenitude of Section 438 must be
given its full play. There is no requirement that the accused must make
out a special case for the exercise of the power to grant anticipatory
bail. This virtually reduces the salutary power conferred by Section
438 CrPC to a dead letter. A person seeking anticipatory bail is still a
free man entitled to the presumption of innocence. He is willing to
submit to restraints and conditions on his freedom, by the acceptance of
conditions which the court may deem fit to impose, in consideration of
the assurance that if arrested, he shall be enlarged on bail;
The
power of course of action on an application for anticipatory bail ought
to be that after evaluating the averments and the accusations available
on the record if the court is inclined to grant anticipatory bail then
an interim bail be granted and notice be issued to the Public
Prosecutor. After hearing the Public Prosecutor, the court may either
reject the anticipatory bail application or confirm the initial order of
granting bail. The Public Prosecutor or the complainant would be at
liberty to move the same court for cancellation or modifying the
conditions of anticipatory bail at any time if liberty granted by the
court is misused. The anticipatory bail granted by the court should
ordinarily be continued till the trial of the case;
It is settled
legal position that the court which grants the bail also has the power
to cancel it. The discretion of grant or cancellation of bail can be
exercised either at the instance of the accused, the Public Prosecutor
or by the complainant, on finding new material or circumstances at any
point of time;
In pursuance of the order of the Court of Session
or the High Court, once the accused is released on anticipatory bail by
the trial court, then it would be unreasonable to compel the accused to
surrender before the trial court and again apply for regular bail;
Discretion
vested in the court in all matters should be exercised with care and
circumspection depending upon the facts and circumstances justifying its
exercise. Similarly the discretion vested with the Court under Section
438 Cr.PC should also be exercised with caution and prudence. It is
unnecessary to travel beyond it and subject the wide power and
discretion conferred by the legislature to a rigorous code of self
imposed limitations;
No inflexible guidelines or straitjacket
formula can be provided for grant or refusal of the anticipatory bail
because all circumstances and situations of future cannot be clearly
visualized for the grant or refusal of anticipatory bail. In
consonance with legislative intention, the grant or refusal of
anticipatory bail should necessarily depend on the facts and
circumstances of the case;
The Supreme Court further provides the
factors and parameters that are needed to be taken for consideration
while dealing with anticipatory bail as held in ‘Siddharam Satlingappa
Mhetre V. State of Maharashtra’ – 2010 (12) TMI 1085 - SUPREME COURT:
The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
The
antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a court
in respect of any cognizable offence;
The possibility of the applicant to flee from justice;
The possibility of the accused’s likelihood to repeat similar or other offences;
Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
The
courts must evaluate the entire available material against the accused
very carefully. The court must also clearly comprehend the exact role
of the accused in the case. The case in which the accused is implicated
with the help of Section 34 and 149 of the Penal Code, the court
should consider with even greater care and caution because over
implication in the cases is a matter of common knowledge and concern;
While
considering the prayer for grant of anticipatory bail, a balance has to
be struck between two factors, namely, no prejudice should be caused to
free, fair and full investigation, and there should be prevention of
harassment, humiliation and unjustified detention of the accused;
The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
Frivolity
in prosecution should always be considered and it is only the element
of genuineness that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt as to the genuineness
of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.
About
half of internal audit leaders lack confidence in their staffs’
cybersecurity expertise, and nearly half say internal audit has little
or no involvement in evaluating the quality of data used in their
organization, according to a new survey.
Fifty-two percent of the nearly 500 respondents to The Institute of Internal Auditors (IIA) North American
pulse survey
said that a lack of cybersecurity expertise among internal audit staff
very much or extremely affects internal audit’s ability to address
cybersecurity risk.
Just one-quarter of respondents who reported having a business
continuity plan said their plan provides clear, specific procedures in
response to a data breach. And 17% said their plans provide no data
breach or cyberattack procedures at all.
With regard to cybersecurity, internal audit organizations primarily
are focused on prevention. More than half (53%) of respondents said
prevention efforts, such as hardening interior or external barriers, are
the most effective method for addressing a cyberattack.
“In the face of a cyberattack, addressing business continuity and
reputational risk are paramount, yet few organizations are taking time
to think beyond prevention,” IIA President and CEO Richard Chambers said
in a news release. “The IIA has been promoting cyber resiliency—the
concept of addressing the full spectrum of prevention, detection,
reaction, and restoration—for some time, so these findings are
particularly alarming.”
Meanwhile, 47% of respondents said internal audit is slightly or not
at all involved in evaluating the quality of data used in their
organization. Nearly one-quarter (23%) said they are slightly or not at
all confident in their organizations’ data-based strategic decisions.
Other findings
- The percentage of internal audit chiefs who report functionally to
the audit committee or board of directors has risen (83%, up from 76% in
2013).
- More than one-third (35%) project increases in their next internal
audit budget, and more than half (55%) expect their next budget to
remain the same as the current budget.
- One-fourth expect internal audit staffing to increase, and 71% project that staffing will remain the same.
- See more at: http://www.journalofaccountancy.com/news/2016/feb/internal-audit-challenges-201613894.html#sthash.qRo0FYHg.dpuf