Report No. 268
E. Anticipatory bail
11.17 The issue of liberty vis-à-vis custody has been settled in the context of States where the provision of Section 438 Cr.P.C. has no application. In Kumari Hema Mishra v. State of UP271, upholding the power to stay arrest under Article 226 of the Constitution the Supreme Court stated that police custody must be balanced against the duty of courts to uphold the dignity of every man and to vigilantly guard the right to liberty without jeopardizing the State objective of maintenance of law and order. Likewise, in Manubhai Ratilal Patel v. State of Gujarat272, the question as to whether a writ of Habeas Corpus could be entertained by the High Court where a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be mechanical, illegal or without jurisdiction fell for consideration. In the order suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted.
11.18 The proviso to s. 438 of Cr.P.C must be retained; this is contrary to the suggestions made in the 203rd Report of the Law Commission.273 The proviso needs to be retained because where the offence is grave and non-bailable, it enables the immediate arrest of the accused person between the time such accused moves an application till the time the court has not passed any interim order or rejected the application. Anticipatory bail is an extraordinary privilege and it must be granted bearing in mind the guidelines laid down by the Supreme Court.
The courts must exercise extreme caution in bestowing this privilege and not grant anticipatory bail in a mechanical or perfunctory manner. Over the years, anticipatory bail has been misused by person accused of any offence to disrupt the investigation and obstruct the course of justice. Given that the provision is increasingly misused, it is at such times important to remember that the intention of the legislation was to protect the innocent from being unnecessarily subjected to harassment.
11.19 The Law Commission is of the opinion that anticipatory bail must not only be granted with caution but must also be made operative for a limited period of time. Further, given the special position that s. 438 of Cr.P.C enjoys in the Code and the potential for misuse, any order passed under this section must be accompanied with reasons for rejecting or granting anticipatory bail.