Report No. 154
Issue No. 12-Anticipatory Bail
Views of Judges
The majority view (5:3) of the High Court Judges is that section 438 of the Code must be retained and not deleted, but certain guidelines formulated by the Supreme Court in numerous decisions and that strict conditions should be laid down in order to prevent misuse of this provision. Justice R.G. Vaidyanath of Bombay High Court has also suggested that this section should be used only in extraordinary and exceptional cases., and normally not in serious offences which are punishable either with death or imprisonment for life. Justice K.N. Goel (Retd.) has, however, suggested that the power to grant anticipatory bail should be given only to the High Courts and not to the Courts of Sessions.
The logic is based on the fact that now High Courts are interfering under Article 226 of the Constitution with the F.I.R./arrest of the accused persons by stay of proceedings. Hence, the negation of section 438 in U.P. It has been suggested by a few Judges that Public Prosecutor should be given a clear notice of 7 days and that only High Court should exercise the power within whose jurisdiction the offence has been committed.
The majority (28:10) of the Judges of District Courts and other subordinate judiciary have also taken similar stand. It is to be pointed out at this place that States of Orissa and West Bengal have already inserted a similar proviso after sub-section (1) in section 438 of the Code, which reads:
Orissa:"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case." (Orissa Act 11 of 1988, section 2).
West Bengal:" Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days' notice to present its case." (W.B. Act 25 of 1990).
On the other hand, Justice D. Redeppa Reddy of the Andhra Pradesh High Court along with Justice B.S. Raikote and Justice K.S. Srivastava are in favour of deletion of section 438 of the Code as they find that anticipatory bail is doing more harm than good to the society.
Views of the Police Officers
The majority of police officers are in favour of deletion of section 438 from the Code of Criminal Procedure keeping in view the difficulties faced by the investigating agencies in detection of heinous offences relating to property and person.
However, Shri C. Anjaneya Reddi, DG (Vig. & Enft.) and ex officio PS to the Government of Andhra Pradesh (GAD) of Hyderabad observes that the provision for anticipatory bail should be retained, as in the legislation affecting women and weaker sections, arrest has been mandatory, there is every likelihood of false or exaggerated allegations being made in respect of these offences. Arrest will follow even before preliminary investigation is done. So unless anticipatory bail is provided there is no way for the accused persons to save themselves from social ignominy following such arrest.
Views of Advocates/Government Pleaders/Bar Associations
In the lawyers' opinion, anticipatory bail should not be written off despite the fact that this provision has been widely misused. According to them, like the misuse of this provision, the provisions on arrest have also been misused. However, statutory provision needs to be clarified that only the Courts which have jurisdiction to try offences ought to be empowered to grant anticipatory bail and if the accused apprehends arrest at some other place, he must show that he is the resident of that place in order to be able to invoke the jurisdiction of local court. Such transitory anticipatory bail must not exceed 7 days and should be confirmed by the Court of jurisdiction, failing which the same should lapse.
Views of Academicians
Professor H.C. Dholakia, a former Member of the Law Commission of India, has opined that in order to prevent misuse of provisions regarding anticipatory bail, stringent requirements may be prescribed. In this context, he refers to the West Bengal Amendment as follows:
In sub-section 1 of section 438, the following proviso shall be added:
"Provided that when the apparent accusation relates to an offence punishable with death, imprisonment for life or a term not less than 7 years, no final orders shall be made on such application without giving the State not less than 7 days' notice to present its case."
Other academicians have, however, not made any comment in this context.
Views of the State Law Commissions
No comments have been received.
Views of the State Governments
State of Gujarat does not support the deletion of section 438 of the Code. No more replies have been received on this subject.