Report No 203
7.1 We recommend that:
(i) The proviso to sub-section (1) of Section 438 shall be omitted.
(ii) Sub-section (1B) shall be omitted.
(iii) A new sub-section on the lines of Section 397(3) should be inserted.
(iv) An Explanation should be inserted clarifying that a final order on an application seeking direction under the section shall not be construed as an interlocutory order for the purposes of the Code.
7.2 The text of Section 438 so revised will be as follows:
"438. Direction for grant of bail to person apprehending arrest. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable 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 may, after taking into consideration, inter alia, 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 object 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.
(2) 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.
Explanation:- The final order made on an application for direction under sub-section (1) shall not be construed as an interlocutory order for the purposes of this Code.
(3) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under subsection (3) of Section 437, as if the bail were granted under that section.
(4) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
(5) If an application under this section has been made by any person either to the High Court or the Court of Session, no further application by the same person shall be entertained by the other of them.
We recommend accordingly.
Dr. Justice AR. Lakshmanan
Prof. (Dr.) Tahir Mahmood