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Report No 203

Chapter III

Legislative Changes

3.1 With a view to removing certain difficulties experienced in its working, the Code of Criminal Procedure, 1973 underwent several amendments in 1974, 1978, 1980, 1983, 1988, 1990, 1991 and 1993 for specific purposes.

3.2 In May, 1994 the Government of India introduced the Code of Criminal Procedure (Amendment) Bill, 1994 in the Rajya Sabha incorporating many amendments in the Code including those proposed to be made in Section 438.

3.3 Earlier, the IGP's Conference, 1981, inter alia, suggested that Section 438 be amended so as to take away the powers to grant anticipatory bail from the Court of Session and vest the same only in the High Courts. In May 1983, the Home Ministry constituted a Group of Officers, which considered the question of deletion of the provision of anticipatory bail and felt that since, after deletion of the provision, the High Court will be competent to grant bail under the inherent powers, the provision need not be deleted.

As sometimes, the Courts take a very liberal view in granting anticipatory bail to criminals, it was considered that such powers should be taken away 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. At times, an accused person secures anticipatory bail even without making an appearance before the Court. It was, therefore, proposed to amend Section 438 Cr.P.C. to the effect that:-

(i) the power to grant anticipatory bail should be taken away from the Court of Session and should vest only in the High Court;

(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 or Government Advocate. The question of bail would then be re-examined 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 and provision made for certain exceptions so as to cover cases where a person is sick or cannot appear in Court due to certain unavoidable circumstances.

3.4 A Parliamentary Bill being No. 56 of 1988 was introduced in the Lok Sabha on 13th May, 1988, clause 49 whereof sought to amend Section 438 by inter alia, omitting the words "or the Court of Session" both from sub-section (1) and (2) of that Section, but the same had not been carried out.

3.5 In May, 1994 the Government of India introduced the Code of Criminal Procedure (Amendment) Bill, 1994 in the Rajya Sabha while the Bill was before the Parliamentary Committee on Home Affairs, the Government of India made a reference to the Law Commission to undertake comprehensive revision of the Code of Criminal Procedure and suggest reforms in the law. Accordingly, the Law Commission submitted its 154th Report on the subject. It may be expedient to reproduce the relevant extracts of this Report hereinbelow insofar as the same relate to anticipatory bail.

"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 Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565. The Supreme Court, reversing the Full Bench decision of the Punjab and Haryana High Court in this case (Shri Gurubaksh Singh Sibbia and others v. State of Punjab, AIR 1978 P&H 1), 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 observed:-

"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" (p. 586).

The Court also held that the conditions subject to which the bail can be granted under 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 misgivings:-

(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 (pp. 589-590).

The working of Section 438 has been criticized 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.

In view of the above circumstances, some State governments have made local amendments to the Code of Criminal Procedure. Uttar Pradesh Legislature has repealed 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.

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 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:

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 subSection (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."

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 minimize 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". (Pages 27-29)

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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