Report No 203

6.3 Note on Section 438 (1B):

6.3.1 As far as Section 438(1B) is concerned, the Section provides:

(a) the presence of the person;

(b) seeking anticipatory bail

(c) shall be obligatory;

(d) at the time of final hearing of the application and posting for final order by the court;

(e) if on application made to it by the Public Prosecutor;

(f) the court considers such presence necessary in the interest of justice.

6.3.2 It may thus be seen that the presence of the petitioners is not necessary in all the cases of final hearing of anticipatory bail applications. It is only in such cases where an application has been filed by the Public Prosecutor for the presence of the petitioner and the court considers the presence of such person necessary in the interest of justice. Such a conclusion can be reached by the court after hearing both the parties.

The petitioner would thus have an opportunity to present his side of the case while opposing the application filed by the Public Prosecutor. Where no such application has been filed by the Public Prosecutor, it may not be necessary for the applicant to be present at the final hearing of his application for anticipatory bail.

6.3.3 Under the existing provision, it is not necessary for the applicant to be personally present in the court while applying for anticipatory bail. There is no obligation cast on a person against whom a crime has been registered by the police for having committed a non-bailable offence to appear before the Court to get himself released on bail in anticipation of his arrest.

If there is no such duty cast on him to surrender and move for bail, it does not stand to reason that he should be deprived of the right to move for anticipatory bail as soon as a crime is registered against him. The right to move for anticipatory bail is available to a petitioner till he is actually arrested on the basis of the accusation (See Chandramohan v. State of Kerala, 1977 K.L.T. 791).

6.3.4 Once the arrest is made, the provisions relating to anticipatory bail cease to apply. Even an appeal against the grant of anticipatory bail becomes infructuous. In State of Assam and another v. Dr. Brojen Goga and others, AIR 1998 SC 143, the State challenged the order of a Single Judge of the Bombay High Court granting anticipatory bail to the respondent No.1. Inspite of the said order, the Assam Police arrested respondent No.1 and took him into custody.

When the petition was taken up for hearing, the Supreme Court declined to deal with the respective contentions of the parties as the appeal became infructuous upon the arrest of the respondent No. 1. The Court observed that it was for the respondent No. 1 to move the Court of appropriate forum if he wanted to take up the issue of violation of the direction in the impugned order.

6.3.5 In Hajialisher v. The State of Rajasthan, (1976) Cri. L.J. 1658 (Raj.), it was held that surrender of accused could not be insisted upon in case of an application for anticipatory bail. In this case, the petitioner came straight to the High Court under Section 438 Cr. P.C. without approaching the Court of Session. The High Court expressed the view that ordinarily the lower Court should be first moved though in exceptional cases or special circumstances, the High Court might entertain and decide an application for bail under Section 438.

The learned Counsel of the petitioner then hinted that the Session Court might insist upon surrendering the accused before giving consideration to the application under Section 438. In response to this, the learned Single Judge observed: "I do not see any ground for such apprehension. Law is crystal clear on the point that under Section 438 Cr.P.C. whenever any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply for anticipatory bail.

If the surrender of the accused were insisted upon, then the very purpose of Section 438 Cr.P.C. for grant of anticipatory bail would be defeated. It need hardly be pointed out that Section 438 was provided to meet those cases where for political or other extraneous considerations, false and unfounded criminal charges may be brought against innocent persons and they may be harassed and humiliated. Keeping in view the intention of the legislature implicit in the Section, I am of the view that if the application properly falls under Section 438, Cr.P.C., the surrender of the accused cannot be insisted upon."

6.3.6 The lawyers' objections to new sub-section (1B) are two-fold - firstly that personal appearance of the applicant in the Court at the time of final hearing of his application would enable the police to arrest him in the event of rejection of his application by the Court, and secondly, in such an event, the applicant would be deprived of his statutory right to move the High Court under Section 438 Cr.P.C. otherwise available to him under this Section as concurrent powers have been vested thereunder in the Court of Session as well as the High Court.

There is some substance in what the lawyers say. The position available under new sub-section (1B) is certainly less advantageous than what is presently obtained under the existing Section 438. However, it is more a matter of legislative policy as to what the law should be. The right to move the Court of Session or the High Court one after another has been so given under the statute and the same can be taken away or suitably modified by amending the statute.

Even under the existing provision, if a person chooses to move, the High Court first, he will not have an effective right to have the same relief at the hands of the Court of Session as grant of such relief by a lower court is most likely to be viewed as an act of judicial impropriety when the same relief has been refused by the Higher Court on the same facts and material. Theoretically, a person can move either the Court of Session or the High Court at his option and not necessarily in any given order.

To this aspect, we may deal in greater detail a little later. But suffice it to say, the new subsection (1B) is not open to any objection on account of lack of legislative competence. As regards the value opinion as to whether the law should be as provided in new sub-section (1B), is a different matter.

6.3.7 But there could be another serious objection to new subsection (1B) which is inherent in the nature of anticipatory bail itself. As stated earlier, anticipatory bail is in anticipation of arrest. Once arrested, the benefit of anticipatory bail is not amenable to be availed of.

6.3.8 Section 438 known as anticipatory bail is, in fact, a pre-arrest bail. The legislature has given authority or has conferred right upon a citizen of this country that if he apprehends his arrest in connection with some non-bailable offence, then, he can move an application to the Court of Session or the High Court for grant of pre-arrest bail and the Court may grant a protective order in favour of such person.

While granting such order, the Court may impose certain conditions enumerated under Section 438(2), Cr.P.C. Section 439, Cr.P.C. deals with the powers of Session Court and High Court in cases where the accused has already been taken into custody. Any order passed under Section 439, Cr.P.C. would be a post-arrest order, it directs a competent Court to release the accused on his furnishing personal bond and/or surety bond or on complying certain conditions.

6.3.9 Application under Section 439 Cr.P.C. in view of the language employed under Section 439, Cr.P.C., would be maintainable only when the accused is in the custody.

6.3.10 In Naresh Kumar Yadav v. Ravindra Kumar and others, 2007 (12) SCALE 531, Dr. Ajit Pasayat J. very aptly amplified the distinction between anticipatory bail under Section 438 and regular bail under Section 439 of the Code of Criminal Procedure, 1973 as follows:

"The facility which Section 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance.' Thus bail is basically release from restraint, more particularly the custody of Police.

The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. (See: Gur Baksh Singh v. State of Punjab 1980 (2) SCC 565). Section 46 (1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the Police Officer or other person making the same "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action".

The order under Section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Section 46 (1) of the Code or any confinement. This Court in Balachand Jain v. State of Madhya Pradesh (AIR 1977 SC 366) has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail.

Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438.

The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipatory accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.

Sections 438 and 439 operate in different fields. It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".

6.3.11 Section 438, Cr.P.C. clearly says that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for a direction under this Section, and that in the event of such arrest, he shall be released on bail. Section 438, Cr.P.C. provides a protective order in favour of the accused who is apprehending his arrest; while Section 439, Cr.P.C. applies to the accused who is in custody. The word 'custody' for the purposes of Section 439 has been interpreted by the Supreme Court and by the High Court. [Akhilesh Jindani (Jain) And another v. State of Chhattisgarh, 2002 Cri. L.J. 1660 (Chhattisgarh)].

6.3.12 While interpreting the expression "in custody" within the meaning of Section 439 Cr. P.C., Krishna Ier J speaking for the Bench in Niranjan Singh and another v. Prabhakar Rajaram Kharote (1980) 2 SCC 559 observed that:

"When is a person in custody, within the meaning of Section 439 Cr.P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person.

The equivocatory quibbling and hide-andseek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Session Judge and the jurisdiction to grant bail thus arose.

Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the Court.

He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Session Court.

This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of Section 439 Cr. P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Session Court acquired jurisdiction to consider the bail application.

It could have refused bail and remanded the accused to custody, but in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground."