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Report No 203

6.2 Note on Proviso to Sub-Section (1) of the Amended Section:

6.2.1 As far as the proviso permitting the arrest where either the Court has not passed any interim order or has rejected the application for grant of anticipatory bail, merely based on the averments in the anticipatory bail application is concerned, the said power granted by the proviso can cause incalculable harm for the following reasons:-

(i) A person approaches the Court for anticipatory bail mainly for the reason that with some malafide motive the complainant is seeking to implicate him falsely in a criminal case. Predominantly, this is a reason why a person seeks anticipatory bail. No doubt, certain real offenders also make false allegations of malafide and under that garb seek to obtain anticipatory bail.

(ii) In order to get at the latter category of people, the former are also exposed to the humiliation of arrest. It is here that the proviso to Section 438 fails to arrive at the right balance.

(iii) Permitting arrest merely because interim bail is denied, in a matter where notice has been issued to the police would virtually render the anticipatory application infructuous. Traditional view was that once an anticipatory bail is filed, till it is disposed off, the person should not be arrested. In fact, some Police Standing Orders had also prescribed that this procedure should be followed.

(iv) This proviso should be read down and it should mean that only where the anticipatory bail application is rejected, either ex-parte or after notice and if a police officer, under Section 157(1) Cr.P.C., considers arrest necessary, then and then alone should arrest be done. Merely because anticipatory bail application is rejected, an innocent person should not be arrested for the reason that he set out certain averments as the basis for apprehending arrest.

(v) Permitting arrest of an applicant seeking anticipatory bail in case the Court has not passed any interim order providing protection against his arrest would render the pending bail application infructuous even without going into its merits. Such arrest may have the effect of over-reaching the Court and the judicial process.

(vi) Unless the above interpretation is put the ambiguity in the proviso will cause hardship. The Supreme Court has held that an anticipatory bail application can be moved in certain cases even before an FIR is registered. (Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565). In a case where an FIR is not registered or even an FIR is refused to be registered (of which the applicant himself may not be aware), merely because the anticipatory bail application is moved, and interim order is not passed or where anticipatory bail is rejected as a matter of course based on the averments, arrest should not be made.

6.2.2 There seems to be much substance in the aforesaid submissions especially when we bear in mind the proper nature and scope of the power to arrest and the manner in which it is ought to be exercised in law. It will be relevant to refer to certain very useful and succinct observations made by the Supreme Court on this subject in the case of M.C. Abraham and another v. State of Maharashtra and others (2003) 2 SCC 649.

6.2.3 In this case, a complaint was filed by the Provident Fund Commissioner against the Directors of Maharashtra Antibiotics and Pharmaceuticals Ltd. (referred to as MAPL) alleging offences under Sections 406 and 409/34 IPC. MAPL was a joint venture of the Government of India and the State of Maharashtra and had been declared a sick industry by the Board of Industrial and Financial Reconstruction. Some of the accused persons moved the High Court for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure. Those petitions were rejected by the High Court by its order dated 7-9-2001. The orders rejecting those petitions were not appealed against.

6.2.4 On 10.1.2002, the High Court passed the impugned order observing that it was shocking that the writ petitioners have to approach the High Court seeking directions against the State to act on the complaint lodged by the Provident Fund Commissioner against the Directors of MAPL. Despite the fact that their applications for grant of anticipatory bail had been rejected by the High Court by a reasoned order, they had not been arrested. The High Court, therefore, felt that in the circumstances, the only course open to the respondent State was to cause their arrest and prosecute them. The High Court thereafter passed the following order:-

"We, therefore, direct the respondent State to cause arrest of those accused and produce them before the Court on or before 14.1.2002. On their failure to do so we will be constrained to summon the Commissioners of Police, Nagpur, Pune and Mumbai to appear before this Court in person and explain that as to why they are not able to cause arrest of these persons.

Merely because the accused are government servants/officials they do not enjoy any immunity from arrest if they have committed an offence. It is expected of the State to be diligent in prosecuting such offenders without discrimination.

The order be communicated to the Principal Secretary, Home Department, Government of Maharashtra and also to the Commissioners of Police of three cities who will be solely responsible for failure to comply with the orders of this Court. Learned APP is directed to communicate the orders by fax, wireless message in addition to other mode of service and even inform them on telephone SO 16.1.2002. Authenticated copy be furnished to APP".

6.2.5 On 16.1.2002, the Court passed another order wherein it was observed: "Our anxiety is to see that the State expeditiously concludes the investigation in the case and file a charge sheet. We may again remind the State of the order passed by this Court while rejecting the pre-arrest bail application on 7.9.2001 and should not show any laxity in the investigation."

6.2.6 Earlier on 11.1.2002, the Court had dismissed an application filed by Respondents for modification of Court's Order, dated 7.9.2001. All these three orders were challenged in appeals by the appellants in the Supreme Court.

6.2.7 Allowing the appeals, the Hon'ble Supreme Court made the following observations:

"In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The Section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that Section.

It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person.

At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.

The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the court on mere apprehension that he may be arrested. The court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation.

The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations."

6.2.8 Reference may also be made to the observations of the Supreme Court in S.N. Sharma v. Bipen Kumar Tiwari and others (1970) 1 SCC 653 wherein the Court observed:

"It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers" [pp. 657-658 (Para 11).

6.2.9 It may thus be seen that the arrest of a person should not necessarily be resorted to merely because his application for anticipatory bail has been rejected by the Court. There has to be sufficient grounds to arrest such a person. The power of arrest should not be exercised mechanically. Instead, it should be exercised cautiously and with circumspection, having regard to the facts and circumstances of each case, especially the nature of the offence alleged to have been committed and antecedents of the accused person and other relevant material.

If upon such a consideration, the arrest of the accused person is considered necessary, only then it would be made and not otherwise. This may be viewed as inherent in the power of arrest. Necessity of arrest in a case may be construed as an essential attribute of the valid exercise of the power to arrest. Absence of such necessity will vitiate the exercise of the power to arrest and render the arrest so made as arbitrary and bad in law.

6.2.10 The proviso is more of clarificatory nature. It is not by way of an exception to sub-section (1) of the Section. It only seeks to clarify whether there is any embargo on the Police power to arrest the applicant/petitioner on whose anticipatory application either no interim order has been passed or whose application for direction under sub-section (1) has been rejected. The proviso declares that there will not be any embargo and it will be open to the Police to arrest such a person if such an arrest is otherwise considered necessary in a given case.

The proviso, however, does not say that the Police must necessarily arrest the person in the situation envisaged therein. Undoubtedly, the proviso does not enjoin upon the Police Officer to mandatorily arrest the person whose application for anticipatory bail has been rejected. It only provides that in the exigencies mentioned therein, there will not be a bar to the arrest of the person if the Police otherwise considers his arrest necessary and there are sufficient grounds to do so.

The well settled legal position is that in the absence of any protective judicial order, there will not be any fetter on the exercise of power of arrest by the police in accordance with the provisions of the Code. Since the law on this aspect of the matter is already very clear, it is not necessary to insert this proviso in the Section. We are of the considered view that the general power of arrest of the police need not in fact be asserted in the context of anticipatory bail as is done in the said Proviso in as much as it may unwittingly give an impression, howsoever wrong it might be, that police could arrest if the applicant is not granted anticipatory bail.

One must further note that the contingencies contemplated in the proviso are not only confined to rejection of anticipatory bail application but also extend to the cases of pendency of anticipatory bail applications though no interim order has been made thereon. Arrest in such a case will render the pending anticipatory bail application infructuous as no direction for release on bail in the event of arrest can be issued after the arrest has already been made.

Arrest in such a case will have the effect of overreaching the Court even during the pendency of anticipatory bail application. Permitting arrest of the applicant during the pendency of his anticipatory bail application will defeat the very purpose of Section 438. We expect the police to be bit more discreet in effecting arrest in such cases. As a matter of principle arrest in such cases should not be made unless it is absolutely necessary to do so in the interest of justice.

Even while doing so, proper decorum and respect ought to be shown to the judicial institution before which anticipatory bail application may be pending. Arrest of a person whose application for anticipatory bail is rejected, will also deprive him of his right to move the higher Court for relief against his arrest. We, therefore, recommend that the Proviso to sub-section (1) of Section 438 should be omitted as there is no warrant for reiterating the general power of arrest of the police as is otherwise obtained under the existing law.

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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