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Report No. 154

Anticipatory Bail

13.1. Section 438 empowers the Sessions Court and the High Court to grant anticipatory bail, namely a direction to release a person on bail even before he is arrested.

13.2. The Law Commission in its 41st Report recommended the incorporation of a provision on anticipatory bail. The Commission had observed1:

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 him first to submit to custody, remain in prison for some days and then apply for bail.

1. See para. 2.13.

13.3. The Code of Criminal Procedure as amended in 1973 has incorporated the concept of grant of anticipatory bail in section 438.

13.4. The Law Commission, in its 48th Report, gave vent to the impression that had gained ground in the interregnum about the misuse of the provision on grant of anticipatory bail in the following observations1:

"[I]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 interest 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."

1. Forty-eighth Report, Some Questions under the Code of Criminal Procedure Bill, 1970, para. 31, (1972).

14. Since the introduction of the provision of anticipatory bail under section 438, its scope has been under judicial scrutiny. The leading case on the subject is Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565. The Supreme Court, reversing the Full Bench decision of the Punjab and Haryana High Court in this case1 which had given a restricted interpretation of the scope of section 438, held that in the context of Article 21 of the Constitution, any statutory provision (section 438) concerned with personal liberty could not be whittled down by reading restrictions and limitations into it. The Court observed2:

"Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section."

The Court also held that the conditions subject to which the bail can be granted under section 437(1) should not be read into section 438. While allowing unfettered jurisdiction to the High Court and the Court of Session, the Supreme Court fondly hoped that a convention may develop whereby the High Court and the Court of Session would exercise their discretionary powers in their wisdom. The Court laid down the following clarifications on certain points which had given rise to misgivings3:

(i) The person applying for anticipatory bail should have reason to believe that he will be arrested. Mere 'fear' of arrest cannot amount to reasonable belief'.

(ii) The High Court and the Court of Session must apply their mind with care and circumspection and determine whether the case for anticipatory bail is made out or not.

(iii) Filing of FIR is not a condition precedent to the exercise of power under section 438.

(iv) Anticipatory bail can be granted even after the filing of FIR.

(v) Section 438 cannot be applied after arrest.

(vi) No blanket order of anticipatory bail can be passed by any court.

1. Gurubaksh Singh Sibbia v. State of Punjab, AIR 1978 P&H.

2. (1980) 2 SCC 565 (586).

3. (1980) 2 SCC 565 (586, 589-590).

15. The working of section 438 has been criticised in that it hampers effective investigation of serious crimes, the accused misuse their freedom to criminally intimidate and even assault the witnesses and tamper with valuable evidence and that whereas the rich, influential and powerful accused resort to it and the poor do not, owing to their indigent circumstances thus giving rise to the feeling that some are "more equal than others" in the legal process.

16. In view of the above circumstances, some state governments have made local amendments to the Code of Criminal Procedure. Uttar Pradesh Legislature has repealed section 438 by the Amending Act of 1976. West Bengal Legislature enacted amendments in 1990 incorporating certain limitations on the power to grant anticipatory bail. Those are:

(i) Mere filing of application in the High Court or Court of Session for grant of anticipatory bail does not debar the police from apprehending the offenders:

(ii) the High Court or the Court of Session be required to dispose of an application for anticipatory bail within thirty days from the date of such application and

(iii) in offences punishable with death, imprisonment for life or imprisonment for a term not less than 7 years, no final order shall be made without giving the state a minimum of seven days' notice to present its case.

17. The Code of Criminal Procedure Amendment Bill in clause 43 seeks to amend section 438, echoing the recommendations of the Law Commission in its 48th Report and also on some other grounds referred to above, in the following manner:

"In section 438 of the principal Act for sub-section (1), the following sub-sections shall be substituted, namely:

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court n-lay, after taking into consideration, inter aiia, the following factors, namely:

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the objection of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant, if there are reasonable grounds for such arrest.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice."

18. In the various workshops diverse views were expressed regarding the retention or deletion of the provision of anticipatory bail. One view is that it is being misused by affluent and influential sections of accused in society and hence be deleted from the Code. The other view is that it is a salutary provision to safeguard the personal liberty and therefore be retained.

Misuse of the same in some instances by itself cannot be a ground for its deletion. However, some restraints may be imposed in order to minimise such misuse. We are, however, of the opinion that the provision contained under section 438 regarding anticipatory bail should remain in the Code but subject to the amendments suggested in clause 43 of the Code of Criminal Procedure, (Amendment) Bill, 1994 which lays down adequate safeguards.

The Code of Criminal Procedure, 1973 Back

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