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As most things have a dark side so do this provision of the code. The
object behind enacting this law was to prevent the innocent from getting
trapped but with time the picture has changed and now persons accused
of heinous offences and even habitual offenders are invoking it
repeatedly, which was not the intent of the relief sought to be given by
this section.
History
The Code of Criminal Procedure, 1898 (old Code) did not contain
specific provision corresponding to Section 438 of the present Code of
1973. Under the old Code, there was a sharp difference of opinion
amongst various High Courts on the question whether a Court had
inherent power to make an order of bail in anticipation of arrest. The
preponderance of view, however, was that it did not have such power.2
The Law Commission of India, in its 41st Report dated September 24,
1969 pointed out the necessity of introducing a provision in the Code of
Criminal Procedure enabling the High Court and the Court of Sessions
to grant anticipatory bail. It observed in para 39.9 of its report
(Volume I) that:
The suggestion for directing the release of a person on bail prior to his
arrest (commonly known as anticipatory bail) was carefully
considered by us. Though there is a conflict of judicial opinion about the
power of a court to grant anticipatory bail, the majority view is that
there is no such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting them
detained in jail for some days. In recent times, with the accentuation of
political rivalry, this tendency is showing signs of steady increase. Apart
from false cases, where there are reasonable grounds for holding that a
person accused of an offence is not likely to abscond, or otherwise
misuse his liberty while on bail, there seems no justification to require
2 Savitri Agarwal V State of Maharashtra (2009) 8 SCC 325
him first to submit to custody, remain in prison for some days and then
apply for bail. 3
In para 31 of its 48th Report (July, 1972) the Law Commission
recommended acceptance of the suggestion and made the following
comments on the aforesaid clause:
The Bill introduces a provision for the grant of anticipatory bail. This
is substantially in accordance with the recommendation made by the
previous Commission. We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such a power
should be exercised. We are further of the view that in order to ensure
that the provision is not put to abuse at the instance of unscrupulous
petitioners, the final order should be made only after notice to the Public
Prosecutor. The initial order should only be an interim one. Further, the
relevant section should make it clear that the direction can be issued
only for reasons to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice. It will also be
convenient to provide that notice of the interim order as well as of the
final orders will be given to the Superintendent of Police forthwith 4
The expression `anticipatory bail has not been defined in the Code and
is a misnomer inasmuch as, it is not as if bail presently granted in
anticipation of arrest.5 Where a competent court grants `anticipatory
bail, it makes an order that in the event of arrest, a person shall be
released on bail.6 The power of granting `anticipatory bail is
3 Law Commission of India 41st Report, September 1969, The Code of Criminal
Procedure, 1898 Volume I, para 39.9; pp. 320-321
4 Law Commission of India 48thReport,July 1972Some question under the Code
of Criminal Procedure Bill, 1970
5 Balchand Jain v. State of M.P., (1976) 4 SCC 572 at para 55
6 Gurbaksh Singh Sibbia v. State Of Punjab 1980 AIR 1632;1980 SCR (3) 383 at
para 397. When the even flow of life becomes turbid, the police can be called
upon to inquire into charges arising out of political antagonism. The powerful
processes of criminal law can the n be perverted for achieving extraneous
ends .Attendant upon such investigations, when the police are not free agents
within their sphere of duty, is a great amount of inconvenience, harassment and
humiliation. That can even take the form of the parading of respectable person in
Section 437: When bail may be taken in case of non bailable offence
1. When any person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without warrant
by an officer-in-charge of a police station or appears or is brought
before a Court other than the High Court or Court of session, he
may be released on bail, buti.
such person shall not be so released if there appears reasonable
grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life;
ii.
such person shall not be so released if such offence is a
cognizable offence and he has been previously convicted of an
offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a nonbailable and cognizable offence: Provided that the Court may
direct that a person referred to in clause (1) of clause (ii) be
released on bail if such person is under the age of sixteen years
or is a woman or is sick or infirm: Provided further that the
Court may also direct that a person referred to in clause (ii) be
released on bail if it is satisfied that it is just and proper so to do
for any other special reason: Provided also that the mere fact
that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for
refusing to grant bail if he is otherwise entitled to be released
on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court.
2. If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are no
reasonable grounds for believing that the accused has committed a
non-bailable offence, but there are sufficient grounds for further
inquiry into his guilt, the accused shall, subject to the provisions
of Section 446A and pending such inquiry, be released on bail, or,
at the discretion of such officer or Court, on the execution by him
of a bond without sureties for his appearance as hereinafter
provided.
JURISDICTION
The High Court and a Court of Session, have concurrent jurisdiction to
grant anticipatory bail. There has been a judicial conflict as regards to
the Court competent to grant anticipatory bail, when the place of
commission of offence and the place of apprehension of arrest lie within
two different states but the dictum accepted by majority of the High
Courts is that that, a court of Session or the High Court having
jurisdiction over the local commission of offense can only grant
anticipatory bail.7The High Courts of Rajasthan, Madhya Pradesh,
Gujarat and Delhi have been firm on the legal position that a court
within whose jurisdiction a person apprehends arrest for a non-bailable
offence is competent court to grant anticipatory bail and a court has no
jurisdiction to grant anticipatory bail to the petitioner against whom a
case has been registered in another state.8The Kerala High Court has
also held that an arrest made outside the State will not be protected by
an order under Section 438 unless the offense itself is alleged to have
7Syed ZafrulHusan V State AIR 1984 Pat 194
8 Pradeep Kumar Soni V State 1990 Cr.L.J 2055(MP)
committed within the state.9 Whereas on the other hand, the Bombay
High Court has taken a contrary view and held that if the offense is
committed in one state but arrest is expected in another State, the High
Court in the latter state can entertain application for anticipatory bail. 10
The unique stand taken by the High Court of Karnataka and Gujarat
regarding the same appears to be more suitable interpretation wherein it
was held that:
Sec 438 Cr.P.C. provides relief to the person apprehending arrest even
though the court may not have jurisdiction to deal with the offence. He
can seek relief in the court within whose jurisdiction he ordinarily
resides. Anticipatory bail of limited duration can be granted with a
direction to the petitioner to approach the court concerned. Thus an
application under Sec 438 should be finally decided by only the court
within whose jurisdiction the alleged offence has been committed.11
11 Dr L.R. Naidu v State 1984 Cri LJ 757(Kant.) ; Neela J Shah V State of Gujarat
1998 Cri LJ 228 (Guj)
show that he has reason to believe that he may be arrested for a nonbailable offence. The use of the expression reason to believe shows
that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere fear is not belief, for which reason, it is
not enough for the applicant to show that he has some sort of a vague
apprehension that someone is going to make an accusation against him,
in pursuance of which he may be arrested. The grounds on which the
belief of the applicant is based that he may be arrested for a nonbailable offence, must be capable of being examined by the court
objectively, because it is then alone that the court can determine whether
the applicant has reason to believe that he may be so arrested. Sec
438(1) cannot be invoked on the basis of vague and general allegations,
as if to arm oneself in perpetuity against a possible arrest. Moreover if
an application for anticipatory bail is made to the High Court or the
Court of Session, it becomes imperative for the court to apply its own
mind to the question and decide whether a case has been made out for
granting such relief. It cannot leave the question for the decision of the
Magistrate concerned under Section 437 of the Code, as and when an
occasion arises. Such a course defeats the object of Section 438.
In regard to anticipatory bail, if the proposed accusation appears to stem
not from motives of furthering the ends of justice but from some ulterior
emotive, the object being to injure and humiliate the applicant by having
him arrested, a direction for the release of the applicant on bail in the
event of his arrest is generally made. On the other hand, if it appears
likely considering the antecedents of the applicant, that taking advantage
of the order of anticipatory bail he will flee from justice, such an order
is not made. But the converse of these propositions is not necessarily
true. It cannot be laid down as an inexorable rule that anticipatory bail
cannot be granted unless the proposed accusation appears to be actuated
by mala fides; and equally, that anticipatory bail must be granted if there
is no fear that the applicant will abscond. The nature and seriousness of
the proposed charges, the context of the events likely to lead to the
making of the charges, a reasonable possibility of the applicants
presence not being secured at the trial, a reasonable apprehension, that
witnesses will be tampered with and the larger interests of the public or
the State, are some of the considerations which the courts keep in
mind while deciding an application for anticipatory bail. In evaluation
of the consideration whether the applicant is likely to abscond, there can
be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away from
the course of justice, and more than there can be a presumption that the
former are not likely to commit a crime and the latter are more.
In considering a petition for grant of bail necessarily, if public interest
requires, detention of citizen in custody for purpose of investigation
could be considered and rejected, as otherwise there could be hurdles in
investigation even resulting in tempering of evidence.12
The Apex Court has held that anticipatory bail cannot be granted as a
matter of right. It is essentially a statutory right conferred long after the
coming into force of the Constitution and that it cannot be considered as
an essential ingredient of Article 21 of the Constitution. Therefore its
non-application to a certain special category of offences cannot be
considered as violative of Article 21.
A duty has been thrust on the courts, to examine the facts carefully and
to ensure that no prejudice is caused to investigation. It is a delicate
balance whereby the liberty of citizen and the operation of criminal
justice system have both to be safeguarded. Custodial interrogation of
such accused is indispensable necessary for the investigating agency to
unearth all the links involved in the criminal conspiracies committed by
the persons which ultimately led to capital tragedy. Where it is pointed
out that the action is mala fide or tainted the courts are required to reach
out the conclusion and do justice by preventing harassment and
unjustified detention. Specific events and facts must be disclosed by the
applicant in order to enable the court to judge of the reasonableness of
his belief, the existence of which is the sine qua non of the exercise of
power conferred by the section.13
DURATION OF ORDERS
A Single Judge of Supreme Court in regard to length of the time for
which the order of anticipatory bails stay operative, in the case of KL
Verma v State held that
14 RavindraSaxena V State of Rajasthan(2010) 1 SCC 684
CONCLUSION
Section 438 is a procedural provision which is concerned with personal
liberty of an individual, entitled to the benefit of the presumption of
innocence since he is not, on the date of his application for anticipatory
Bibliography
iv.
v.
vi.
Net sources
1. http://delhi-lawyer.blogspot.in/2012/06/bail-summarizedcrpc.html
2. https://www.legalserviceindia.com/2013/bail-a briefintroduction.html
3. www.indiankanoon.com
Bail
A critical overview
Roll. No.305/14
Section B
B.A.LL.B Vth Sem
Contents
1. Bail: definition
2. History
3. Sections of CRPC related to Bail
4. Jurisdiction
5. Consideration to exercise discretion
6. Duration Of Orders
7. Bibliography