Report No 203

Chapter V

Lawyers' Objections to Amended Section

5.1 The Madras Bar Association appointed a Committee, headed by a former State Public Prosecutor, to study the various amendments to the Code of Criminal Procedure made by the Code of Criminal Procedure (Amendment) Act, 2005. The Committee gave its report to the effect that 40 out of 44 amendments were welcome ones. The other four, including the one made in Section 438 were opposed being against public interest and would, in the opinion of the Committee, interfere with the independence of the judiciary and the rights of the accused seriously.

The other three set of amendments related to Sections 25A, 324 and 378(1)(a). The Bar Association, therefore, appealed to the Government not to enforce these amendments. The relevant extracts of the Committee's recommendations in respect of Section 438 are as follows:-

"The proviso (2) to sub-section (1) of Section 438 has to be deleted. The apprehension of the accused is manifold and in some cases there may not even be a real possibility of arrest though the accused may apprehend an arrest. To permit the police officer-in-charge to arrest without warrant, the applicant, on the basis of the accusation apprehended in such an application would defeat the very purpose of Section 438.

Similarly, sub-section would only make the hearing of the bail application more cumbersome and the presence of the accused as envisaged in sub-section (1B) at the time of the final hearing of the application would enable the police officer to arrest the accused in the event of the rejection of the bail application. The whole object of introducing Section 438 Cr.P.C. in 1973 Cr.P.C. will be defeated if the present amendment is given effect to. It is pertinent that both the Court of Session as well as the High Court have the concurrent powers in entertaining the bail application.

In the event of the applicant choosing to move the Court of Session, he has a right to move the High Court in the event of his anticipatory bail application being dismissed. In such circumstances, if the accused is present in the Court of Session at the time of hearing of anticipatory bail application and if he were to be arrested without giving him an opportunity to move the High Court for anticipatory bail, the very object of this provision would be defeated."

5.2 The Advocates' Association, High Court, Chennai, too opposed the amended Section 438. It has submitted as follows:-

"The proposed amendment being brought in Section 438 of Code of Criminal Procedure will take away the rights of an alleged accused who may not have involved in any offence without there being any chance to get anticipatory bail without subjecting himself before the Court where the anticipatory application is pending. In the event of not granting any anticipatory bail by the Court, such person can straightaway be arrested.

This amendment provides an unexpected opportunity and embarrassment to the Advocates to bring the alleged accused before the Court hearing anticipatory bail applications on an application made to the Court by the public prosecutor and such advocates indirectly help the police to arrest such accused without there being any investigation made in the alleged offence. This amendment will take away the rights and liberty of an individual to put forth his plea before a Court without getting arrested."