Report No 203
Analysis of The Amended Law and Conclusions
6.1 Nature and Extent of Amendments
6.1.1 sub-section (1) of Section 438 has been extensively amended by the Code of Criminal Procedure (Amendment) Act, 2005. New sub-sections (1), (1A) and (1B) substitute the existing sub-section (1) of Section 438. Accordingly, the following major changes have been made in the Section, namely:
1. Certain factors which the Court will consider, among others, while dealing with application for anticipatory bail, are mentioned in sub-section (1).
2. Upon consideration of these factors, the Court will either reject the application or issue an interim order for the grant of anticipatory bail in the first instance.
3. Where the Court has either rejected the application or has not passed any interim order for grant of anticipatory bail, it will be open to the officer-in-charge of a police station to arrest without warrant the applicant on the basis of the accusation apprehended in such application [Proviso to sub-section (1)].
4. Where the Court grants an interim order, it will give notice being not less than seven days notice to 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 is finally heard by the Court [sub-section (1A)].
5. The presence of the applicant seeking anticipatory bail will be obligatory at the time of final hearing of the application and passing of a 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. [sub-section (1B)].
6.1.2 The Court would grant or refuse anticipatory bail 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.
6.1.3 The changes mentioned at Sl. No.1 to 4 are already being followed in practice by Courts while dealing with applications for grant of anticipatory bail, without these being formally incorporated in the Section. The change mentioned at Sl. No. 5 is the only new addition. The objections to the amendments are primarily directed against the changes mentioned at Sl. Nos. 3 and 5 above.
6.1.4 Thus, it may be seen that in Rattan Kumar v. State of Assam (1979) Cri. L.J. NOC 143 (Gauhati), ad interim anticipatory bail was granted ex parte. Subsequently on hearing both the parties, the earlier order granting bail was reversed. It was held that the subsequent order was not order of cancellation but refusal to grant bail.
6.1.5 Although the existing Section 438 does not stipulate hearing of the State authorities while considering grant of anticipatory bail, it is inherent in the provision that the State authorities being necessary parties to such an application should be afforded an opportunity of being heard in the matter.
In State of Assam and another v. R.K. Krishan Kumar and others, AIR 1998 SC 144, the learned Single Judge of Bombay High Court issued direction under Section 438 to release the respondents, if arrested, on bail without even affording an opportunity to the appellants, i.e. the State of Assam and its Director General of Police in spite of they being made parties in each of the applications for anticipatory bail.
In view of the conceded position that appellants were not heard by the High Court, the Supreme Court set aside the impugned orders on that ground alone. Without going into the question whether Bombay High Court had jurisdiction to entertain the applications filed by respondents in respect of the offences perpetrated in Assam, the Supreme Court further directed that a Division Bench of Guwahati High Court should dispose of the applications which stood transferred to it, after hearing the appellants.
The Court further directed that "status quo as on today will be maintained by the appellants vis-à-vis the respondents herein till 7.11.1997 which is necessary to enable the Division Bench of the High Court of Guwahati to pass appropriate orders on the applications filed by the respondents" The appeals were disposed of accordingly.
6.1.6 In Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the Supreme Court made the following observation, viz.:
"There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the Section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be reexamined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the Section and suitable condition should be imposed on the applicant even at that stage." (at page 591)
6.1.7 In a very recent case, the Supreme Court set aside the impugned order made by the High Court without service on the appellant, converting the application under Section 482 Cr.P.C. to one under Section 438 and granted interim protection. While deprecating the practice of converting applications filed under Section 482 to one for bail in terms of Section 438 or 439 Cr.P.C. Dr. Arijit Pasayat, J. observed in Savitri Goenka v. Kusum Lata Damant and others, 2007 (12) SCALE 799:
"Though many points were urged in respect of the appeal, we find that the impugned order of the High Court cannot be maintained on one ground. Though it had issued notice to the appellant, the matter was disposed of without hearing the appellant."
6.1.8 Thus, it may be seen that Courts, as a matter of practice, ordinarily pass interim order in the first instance and the same is then confirmed or recalled and cancelled after hearing the Public Prosecutor though there has been no specific provision in Section 438 to that effect. Similarly, the factors for consideration in dealing with anticipatory bail applications as are now mentioned in the new Section are only illustrative in nature and the same, along with other relevant factors are indeed being taken into consideration while making final orders on such applications inspite of the fact that these have not been expressly incorporated in the pre-amended Section.
In State of Rajasthan v. Bal Chand, AIR 1977 SC 2447, Justice Krishna Iyer observed: "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from Court."
In Jagannath v. State of Maharashtra, 1981 Cri.L.J. 1808 (Bom.), the Court listed certain factors which have to be kept in view while granting any bail either post-arrest or prearrest, namely,
(i) nature and seriousness of the accusations,
(ii) the nature of the prosecution evidence,
(iii) the severity of the likely punishment in case the prosecution succeeds,
(iv) status of the accused,
(v) likelihood of repeating similar offences, and
(vi) likelihood of tampering of prosecution evidence etc.
6.1.9 It can therefore be said that the amended Section merely seeks to formalize certain aspects that are otherwise being followed in practice without having been formally included in the Section. It needs to be borne in mind that legislation is a sphere which is seldom perfectly complete. There may be conditions and practices which escape formal translation into statutory laws but yet, they continue to influence the conduct of the organs of the State and their subjects.
Such conditions and/or practices may have been initiated in the first instance in individual cases based on sound reasons, logic and rationale. Based on their intrinsic value and inherent appeal, no sooner than later, they develop into customary practices before crystallizing into binding precedents. When the impact point is reached, these conditions and/or practices will emerge as explicit law through passage of legislation.
This is what we say, inchoate law or, the law in the making. In the present case, such inchoate law on anticipatory bail has thus been imbibed into the formal legal order by statutory incorporation thereof into the Code except to the extent of conditions mentioned at No. 3 and 5 above which are not in sync with the extant judicial practices and procedures. These two aspects are dealt in detail hereinafter.