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Report No 203

Chapter 2

Pre-Amended Law

2.1 Chapter XXXIII of the Code of Criminal Procedure, 1973 contains provisions as to Bail and Bonds. Section 438 provides for Court's direction for grant of bail to person apprehending arrest. Such a bail is popularly referred to as anticipatory bail as it is granted in anticipation of arrest. This is a new provision in the present Code. The earlier Code i.e. the Code of Criminal Procedure, 1898, did not contain any specific provision corresponding to the present Section 438.

In the absence of specific provision under the Old Code, there was a difference of opinion among the High Courts of different States on the question as to whether Courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. (See Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565).

2.2 The new provision in Section 438 (has been inserted in the Code on the recommendation of the Law Commission in its 41st Report. In this Report, the Law Commission made the following observations on 'anticipatory bail' viz.

"39.9. Anticipatory Bail:- The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes 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.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as pre-judging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused." (pp. 320-321).

2.3 Based on the 41st Report of the Law Commission, Government introduced the Criminal Procedure Code Bill, 1970. In the Statement of Objects and Reasons of the Bill of the Code of Criminal Procedure in respect of Clause 447 which was incorporated in the Code as Section 438, it was stated as follows:-

"As recommended by the Commission, a new provision is being made enabling the superior Courts to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested. With a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation."

2.4 From the Statement of Objects and Reasons for introduction of Section 438 of the Code, it is apparent that the framers of the Code on the basis of recommendation of the Law Commission purported to evolve a device by which a citizen is not forced to face disgrace at the instance of influential persons who try to implicate their rivals in false cases; but the Law Commission, at the same time, had also issued a note of caution that such power should not be exercised in a routine manner. [see Durga Prasad v. State of Bihar, 1987 Cri. L.J.1200].

2.5 The Bill was referred to the Joint Committee of both the Houses. In the meantime, Government decided to seek the opinion of the Law Commission on few points, the reasons for which were stated as follows:-

"As there are divergent opinions on certain points which are being considered by the Joint Committee in respect of the said Bill, the Government would like to have the considered opinion of the present Law Commission on certain specific points hereinafter mentioned. As the consideration of the Bill, clause by clause, has already been taken by the Joint Committee of Parliament, it would not be necessary to refer the whole Bill for the opinion of the Law Commission afresh. But the Government would very much like to have the considered opinion of the Commission on a few specific points which has arisen for consideration."

2.6 These points, inter alia, included (vi) Provision for grant of anticipatory bail".

2.7 The Commission submitted 48th Reports on these points. As regards anticipatory bail, the Report stated as follows:-

"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that 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 Public Prosecutor. The initial order should only be an interim one. Further, the relevant Sections 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,"

[48th Report of Law Commission of India, July 1970, P.10 (para 31)].

2.8 It appears that the aforesaid recommendations did not find favour with the Government as can be gathered from the text of Section 438 as ultimately enacted in the Code of Criminal Procedure, 1973.

2.9 The Joint Committee of the Parliament made the following observations in respect of Clause 436, which was the original clause 447 of the Code of Criminal Procedure Bill, 1970:-

"The Committee is of the opinion that certain specific conditions for the grant of anticipatory bail should be laid down in the clause itself for being complied with before the anticipatory bail is granted. This clause has been amended accordingly".

2.10 Clause 436 was then enacted as Section 438 of the Code of Criminal Procedure, 1973, which reads as follows:-

"438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) 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.

(3) 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 subsection (1).

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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