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Report No 203

6.4.15 In Dharampal v. State of Punjab, 2002 Cri. L.J. 1621, grant of anticipatory bail by the Session Judge Ropar was adversely commented upon in view of the fact that he himself had refused anticipatory bail twice earlier and the High Court too had refused anticipatory bail and the Supreme Court had also refused to interfere with order refusing anticipatory bail. The High Court observed that "in these circumstances, Session Judge, Ropar has not done well and has shown gross judicial indiscipline and impropriety while granting anticipatory bail in disregard of the orders of the High Court and those of the Supreme Court and his own orders."

6.4.16 In Gandhi v. State of Andhra Pradesh, 1991(3) Crimes 796 (AP), it was held that a second bail application for anticipatory bail was not barred under Section 438 Cr.P.C. However, if the second bail application did not reveal any changed circumstances since the rejection of the first application filed by the petitioner, it would be liable to be dismissed.

6.4.17 In Rameshchandra Kashiram Vora v. State of Gujarat, 1988 Cr. L.J. 210, it was observed that "it would be a sound exercise of judicial discretion not to entertain each and every application for anticipatory bail directly by-passing the Court of Session. Ordinarily, the Session Court is nearer to the accused and easily accessible and remedy of anticipatory bail is same and under same section and there is no reason to believe that Session Court will not act according to law and pass appropriate orders.

In a given case, if any accused is grieved, his further remedy to approach the High Court is not barred and he may prefer a substantive application for anticipatory bail under Section 438 or revision application under Section 397 of the Cr. P.C. to the High Court and the High Court would have the benefit of the reasons given by the Session Court.

It would be only in exceptional cases or special circumstances that the High Court may entertain such an application directly and these exceptional and special circumstances must really be exceptional and should have valid and cogent reasons for by-passing the Session Court and approaching the High Court. When the accused has simple and equally efficacious remedy available in the Session Court, special and weighty reasons would be required to make out a special and exceptional case for persuading the High Court to entertain such application directly."

6.4.18 In State of Maharashtra and another v. Mohd. Sajid Hussain etc., 2007(12) SCALE 63, the respondents filed application for anticipatory bail before the Session Judge, which was dismissed. The respondents moved the High Court and their application for anticipatory bail was allowed while allowing the appeal filed the reagainst by the State, the apex Court observed that "it is now well-settled principle of law that while granting anticipatory bail, the Court must record the reasons therefor".

The Supreme Court noted that the High Court had refused to grant regular bail to the accused against whom charge-sheet had been submitted. The learned Session Judge also did not grant bail to some of the accused persons. The apex Court then observed that "if on the same materials, prayer for regular bail has been rejected, we fail to see any reason as to why and on what basis the respondents could be enlarged on bail." The Supreme Court therefore concluded that the High Court ought not to have granted anticipatory bail to the respondents and accordingly set it aside.

6.4.19 There are a lot many more cases on the above aspects. Suffice it to say that the section has generated much litigation that could have been avoided. There are certain other provisions in the Code which have vested concurrent jurisdiction in the High Court and the Court of Session. For example, both the High Court and the Court of Session have concurrent jurisdiction of revision under Section 397. However, under Section 397 if a person approaches either of these Court, he cannot again agitate that matter by way of revision in the other Court.

Whereas there seems to be justifiable reason for conferring concurrent jurisdiction on the High Court and the Court of Session, yet the person seeking anticipatory bail should have been given an option on the lines of Section 397(3). Accordingly, if he approaches either of these two Courts, he should not be allowed again to seek the same relief by way of a substantive application under Section 438 in the other Court.

It may be noted as observed by Karnataka High Court in K.C. Iyya and etc. v. State of Karnataka, 1985 Cri. L.J. 214 that in the matter of bail, either anticipatory as regular, the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of the High Court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of Session is given as wide a power of discretion as vests in the High Court. In this connection, the following observations of Chandrachud, C.J. in Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632 may be noted.

"There is no risk involved in entrusting wide discretion to the Court of Session and the High Court in granting anticipatory bail because firstly, these are higher Courts manned by experienced persons; secondly, their orders are not final but are open to appellate or revision scrutiny."

6.4.20 That may be noted in this regard that Inspectors General of Police Conference, 1981, inter alia suggested that Section 438 be amended so as to take away the powers to grant anticipatory bail from the Session Court and vest it only in the High Courts. A Group of officers, constituted pursuant to the decision taken at the meeting of Secretaries held on 2nd July, 1982, too concurred with it when it observed that "as sometimes, the Courts take a very liberal view in granting anticipatory bail to criminals, it was considered that such powers should be taken from the Court of Session and vest only in the High Court even though it will make difficult for the poor persons to avail of the provisions of anticipatory bail.

A Parliamentary Bill being No. 56 of 1988 was introduced in the Lok Sabha on 13th may, 1988, clause 49 of which related to amendment of Section 438, providing, inter alia, omission of the words or the Court of Session" from sub-section (1) and (2) of that section. However, these proposed amendments were ultimately not carried out and both the High Court and the Court of Session continued to have concurrent jurisdiction under Section 438 in the matter of anticipatory bail and in our opinion, rightly so.

There are certainly distinct advantages of vesting concurrent jurisdiction in the two judicial forums and giving an option to an applicant to choose one of two, depending upon his convenience or otherwise. These advantages have been referred to in some of the decided cases. (See Shivasubramanyam v. State of Karnataka and another, 2002 Cri.L.J. 1998; Y. Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 Cri.L.J. 3508 (A.P.); Rameshchandra Kashiram Vora v. State of Gujarat, 1988 Cri.L.J.210 (Guj.).

However, it is not readily discernible as to why same relief or facility has been made available to same persons at the hand of two different judicial forums one after another in exercise of their respective original jurisdiction when efficacious remedy is otherwise available against the order of the Court which may have been chosen by an applicant for relief in the first instance. One fails to understand as to why a provision on the lines of Section 397(3) has not been made in Section 438 whereby once the applicant has availed his option to choose one of the two alternative forums, his recourse to the other forum is foreclosed, if he fails to get the desired relief from the forum he has earlier chosen.

Thus, if a person moves the Court of Session for anticipatory bail and fails to get it, then why he should again be allowed to file another substantive application to anticipatory bail to High Court instead of revision, or, as the case may be, appeal against the order of rejection of the application by the Session Court. Again, if the person has moved the High court in the first instance, does it not look apparently anomalous for the same person to move the lower Court, namely, the Court of Session for the same relief on the same facts that has been denied to him by the High Court?

Theoretically, it is permissible. But, as a matter of propriety and policy, should that person not be made to move the higher judicial forum instead of a lower one in such cases. It is inherent in the scheme of things that when two alternative forums are provided in law for seeking directions for anticipatory bail, one lower and another higher, then the lower should be first resorted to as a matter of principle except in exceptional cases in which event the applicant should be deprived of his option to move the lower forum afresh on the same facts and material.

Any different approach may lead to anomalous results where the relief sought at the hands of the High Court having been denied, can again be sought from the lower court without there being any change in the circumstances in which the relief has been denied by the High Court. Theoretically, it may be feasible but in practice it will not be. Such a scenario might not have been in the contemplation of the framers of the law.

If that be so, then we fail to understand as to what distinct advantage is intended to be conferred on persons seeking anticipatory bail by allowing them to move the two alternative forums one after another in their original jurisdiction for the same relief on the same facts. One reason for this could be that an order rejecting an application bail is interlocutory [See Zubair Ahmad Bhat v. State of Jammu and Kashmir, 1990 Cri.L.J. 103 (J&K), Joginder Singh v. State of Himachal Pradesh, ILR (1975) HP 181.

A different view was, however, expressed in Mohan Lal and other v. Prem Chand and others, AIR 1980 HP 36 (FB)] wherein it was held that Sessions Judge's order refusing anticipatory bail was not an interlocutory order. The power of revision conferred by sub-section (1) of Section 397 is not exercisable in relation to any interlocutory order in any appeal, inquiry, trial or other proceeding. (See Section 397(2) of the Code of Criminal Procedure, 1973).

The conflicting views of High Courts in various cases in this regard have led to varied judicial practices whereby recourse is sometime taken to the powers of revision of the High Courts against orders of Courts of Session declining anticipatory bails and in other cases inherent powers of the High Courts are invoked in such matters.

The High Courts exercise their inherent powers to redress the grievance of the aggrieved person or to prevent the use of the process of the Court and to secure the ends of justice or to prevent miscarriage of justice or illegal exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 or under Article 227 in exceptional cases. [See Shyam M. Sachdev v. State and another, 1991 Cri.L.J. 300 (Delhi)]; Ram Prakash v. State of H.P. 1979 Cri.L.J. 750 (HP); Bhola and others v. State 1979 Cri.L.J. 718 (Allahabad); Kamal Krishna De v. State 1977 Cri.L.J. 1492 (Calcutta)].

The Supreme Court in a number of cases has laid down the scope and ambit of the powers of the courts under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone if exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court; and

(iii) to otherwise secure the ends of justice.

Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. (See Inder Mohan Goswami and another v. State of Uttaranchal and others, 207(12) SCALE 15 at 25). Section 482 is not controlled by Section 397(2) or 397(3). The inherent powers of the High Court are not subjected to the bar contained in Section 397 as the powers of the High Court under these two Sections are distinct, different and mutually exclusive and ought not to be equated.

Nothing in the Code nor even the bar under Section 397 affect the amplitude of the High Court's inherent power if glaring injustice stares the Court in the face [See Govind Das Biyani and others v. Badrinarayan Rathi (1995) 4 Crimes 755 (M.P.); Smt. Chander Mohini Khuller v. State of West Bengal and another, 1995(4) Crimes 289 (Cal.); Rajeev Bhatia v. Abdulla Mohmed Gani and another, 1992 Cri.L.J. 2092 (Bom.); Binod Sitha v. Suna Devi 1986(1) Crimes 208 (Ori); Raj Kapoor and others v. State (Delhi Administration)and others, AIR 1980 SC 258); Malam Singh v. State of Rajasthan, 1977 Cri.L.J. 730 (Raj.)].

Thus, where an application for anticipatory bail has been rejected by the Court of Session and no revision lies against it for the order of rejection being an interlocutory order, then the remedy of the applicant will be to invoke the inherent powers of the High Court under Section 482 or the constitutional powers under Article 227 of the Constitution of India, in a case a provision is inserted in Section 438 on the lines of Section 397(3). It may be seen that there is lack of uniformity in judicial practices in these matters that needs to be remedied.

One way of doing this is to extend the benefit of revision by suitably amending the law. It may be noted that the amended provision envisages passing of ad interim order on an application for anticipatory bail application in the first instance, followed by a final order after hearing the Public Prosecutor. Besides, such an application need not necessarily be filed in any pending case as registration of a FIR is not considered necessary. To add to it, the applicant may not be ultimately put up for trial if the investigation of the case does not reveal any material against the applicant.

In such a scenario, the final order on the application may not be in the nature of interlocutory as the case may stand disposed of finally. Besides, the use of legal fiction is not unknown to Law and it is quite often applied to meet a given exigency or to secure certain ends. It is thus legally feasible to expressly provide in the Law that final orders on an anticipatory bail application may not be construed as interlocutory for the purposes of the Code. And, we recommend accordingly.

6.4.21 Accordingly, the position that will so emerge will proceed on the following lines, viz.,

(i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option;

(ii) Once that option is exercised and that person decides to move one of these Courts, then the person will not have any further option to move the other Court;

(iii) Where the person chooses to move the Court of Session in the first instance, a revision will lie in the High Court against the order of Court of Session on the application for issue of directions under Section 438;

(iv) Where the person chooses to straightaway move the High Court in the first instance, subject to Court's satisfaction of the special or exceptional circumstances justifying such move, the person will stand deprived of the aforesaid remedy of revision. In such a case the person if aggrieved of the High Court's order on his application for direction under Section 438 may have to invoke the extraordinary constitutional powers of the Supreme Court by seeking special leave to appeal in the Supreme Court.

6.4.22 We are, therefore, of considered view that Section 438 should be amended so as to contain a provision on the lines of Section 397(3). All other remedies that are presently provided in the Code or otherwise against the final order on an application for anticipatory bail, will, however, continue to be available. This will also take away much of the sting of lawyers' objections against the amendments, particularly those contained in sub-section (1B), that the applicants have been so denied the right to move the other forum against the rejection of his application as he could be arrested being present in the Court, though we have recommended omission of that sub-section, albeit, on different grounds.

6.4.23 We would summarize our recommendations in the succeeding chapter, and also attempt a draft of the revised text of Section 438 as amended on the basis of recommendations made hereinabove.



Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 - Anticipatory Bail Back




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