Report No 203

Section 438 of The Code of Criminal Procedure, 1973 as Amended by The Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)

Chapter 1

Introduction

1.1 This Report deals with Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005. This Section provides for a direction from the Court of competent jurisdiction, viz. the High Court or the Court of Session, for grant of bail to person apprehending arrest in the event of his arrest. This is popularly known as 'Anticipatory Bail', that is to say, bail in anticipation of arrest. The amended Section has not yet been brought into force.

1.2 It is expedient to state briefly the genesis of this Report so that its scope can be properly understood and appreciated in its right perspective.

1.3 Vide its D.O. letter No. 12/53/2006-Judl.Cell, dated September 19, 2006, Ministry of Home Affairs, Government of India, made the present reference, the relevant extracts of which read as follows:-

"The Code of Criminal Procedure (Amendment) Act, 2005 has a provision vide clause 38 to amend Section 438 Cr.P.C. to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances; (ii) if the Court does not reject the application for the grant of anticipatory bail, and makes an interim order of bail, it should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be reexamined in the light of the respective contentions of the parties; and (iii) the presence of the person seeking anticipatory bail in the Court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

The Bill, after being passed by Parliament, the lawyers' fraternity from various parts of the country especially from the State of Tamil Nadu protested against some of the provisions of the Act including the proposed amendment to Section 438 Cr.P.C. relating to anticipatory bail.

The principal objection against the new provision is that a person seeking advanced bail has to be present in Court when the petition is taken up. The main apprehension is that the suspect could be arrested as soon as Sessions Court rejects his anticipatory bail application, if he is present in the Court. The lawyers' fraternity feels that such provision would deny the accused the right to move higher courts for relief/appeal. Grant of anticipatory bail is a power concurrently vested in both the Sessions Court and the High Court. The Lawyers fear that the suspects may be arrested even before they could exhaust their option of moving the High Court.

In view of the strong protest against this provision by the Lawyers fraternity, giving effect to this provision was kept in abeyance and it was decided to seek expert opinion of the Law Commission of India on the amended version of Section 438 Cr.P.C."

1.4 Accordingly, the Law Commission was requested to examine the amended version of Section 438 Cr.P.C. and to suggest a revised version which might have the required provision to enable the accused to get due opportunity to approach higher courts with his plea before being apprehended by police.

1.5 On a query by this Commission, the Ministry of Home Affairs clarified, vide their Office Memorandum No. 12/53/2006-Judl.Cell, dated August 8, 2007 as follows:

"The amendment made to Section 438 Cr.P.C. was on the basis of the suggestions made by the Inspectors General of Police Conference, 1981. At the behest of the Committee of Secretaries, a Group of Officers consisting of Director, CBI, Director, BPR&D, Chief Secretary, Delhi, Additional Secretary, MHA and Joint Secretary in the Department of Legal Affairs was constituted to examine the suggestions made by the aforesaid Inspectors General of Police Conference.

The Group of Officers agreed with the suggestion to amend Section 438 Cr.P.C. as suggested by Inspectors General of Police Conference and accordingly this was included in the Code of Criminal Procedure (Amendment) Bill, 1994 which was introduced in the Rajya Sabha on 9th May, 1994.

The proposal which was considered and passed in Parliament went through consideration and checking at various levels including the Law Ministry, Parliamentary Standing Committee on Home Affairs, etc.

After consideration and passing of the Bill in Parliament during the budget session of 2005, the lawyers' fraternity from many parts of the country particularly from the State of Tamil Nadu strongly protested against some of the provisions including amendment made to Section 438 Cr.P.C. Therefore, a proposal was made to give effect to those provisions of the Act which have not been objected to by a large section. As regards those provisions which did not find favour with the lawyers' fraternity, it was proposed that they might be reexamined by an expert group or the Law Commission of India.

The Cabinet Note wherein this proposal was made had been approved by the Cabinet in its meeting held on 4th March, 2006. Subsequently, a reference was made to the Law Commission of India requesting the Law Commission to examine the possibility of revising the amended Section 438 Cr.P.C. with sufficient safeguards so as to neutralize the apprehension expressed by the lawyers' fraternity".

1.6 Accordingly, the Law Commission was requested to examine the amended version of Section 438 Cr.P.C. and to explore the possibility of suggesting a modified version to make the provision workable with sufficient safeguards to protect the rights and liberty of the citizen.