Anticipatory Bail under CRPC. A critical study of the recent amendments and judicial interpretation of Section 438

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Criminal Procedure Code

A critical study of the recent amendments and judicial interpretation of Section 438

 

Submitted By:

B. Kranthi Kumar,

Id. No : 1576,

3rd Year B.A. LL. B. (Hons.).

        

Date of Submission: 11th August, 2009.

Introduction

               

                In recent times, Section 438 was in news as Varun Gandhi, grandson of late Prime Minister Indira Gandhi, applied to the Delhi high court for anticipatory bail stating that the allegations made on him about the anti-Muslim speech was a conspiracy to spoil his political career and tarnish his secular image in a criminal case filed against him by the directions of the election commission. The Delhi High Court using its power under Section 438 of Criminal Procedure Code (Cr.P.C), allowed the bail petition by making an order that if the petitioner is arrested for the alleged offence he shall be released on bail.

             As we have seen above, Section 438 is a procedural provision that provides for release of the applicant who believes that he may be arrested on accusation of having committed a non-bailable offence and the section as amended by 2005 provides for itself certain guidelines to be followed by the courts which has jurisdiction to grant that bail. It is pre-arrest bail applied for release of the accused in anticipation of arrest and so it is called Anticipatory Bail. The Section nowhere uses the word anticipatory and rather it is a misnomer.

                The Section has been recently amended by the Criminal Procedure Code (Amendment) Act 2005 and Section 438 sub-clause (1) was replaced by a new sub-clauses (1), (1A) and (1B). The 2005 amendment made the presence of the applicant necessary when the court is giving a final order on the matter if the public prosecutor requests the court that such presence is necessary to meet the ends of justice. As a matter of practice the courts the court give notice to the public prosecutor and this was now made mandatory.

The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, case held that the power under section 438 was an extraordinary power and a petition under this section should be dealt by the courts according to the factual circumstances of the case. It further held that the sessions court or the high court have wide discretion while exercising the power under the section and the legislature intent for granting such wide discretion was firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory, bail.

1.] Introduction to Section 438

The Origin
Section 438 of the code provides for conditions under which a person apprehending arrest on an accusation of having a committed a non-bailable offence may apply for bail. Since, the bail is granted in anticipation of the arrest the name is given to it as ‘Anticipatory Bail’ for general use of the section but the Section 438 nowhere uses the word Anticipatory. It is to be noted that the provision regarding bail in apprehension of arrest was not present in the original Code. It was included in the Code in 1973 only after the Law Commission of India in its 41st report recommended that there was a need for such a provision. Before such a provision was incorporated, there were a lot of discrepancies as regards the powers of the court, in the absence of an express provision, to grant bail when an application of such nature was made. However, in most of such cases bail was granted the High Court using its inherent powers.

        Section 438 is mainly a procedural provision, which deals with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail, so he must be presumed to be innocent. The Law Commission in its above-mentioned report observed that “the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals into false cases for the purposes of disgracing them.  Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems to be no justification to require him to first submit to custody, remain in prison for some days and then apply for bail

Therefore pursuant to this recommendation, section 438 was put into the Code in order to ensure that the life and liberty of an innocent person was not jeopardised on flimsy and frivolous grounds at the instance of an irresponsible and unscrupulous person or an officer who may be in charge of the prosecution.

          The Section has been extensively amended in 2005 and at present 438 has three sub-clauses. Before the 2005 amendment the section has three sub-clauses and after the amendment sub-clause (1) was replaced by (1), (1A) and (1B). The section made mandatory to give a notice to the public prosecutor and an opportunity of being heard before giving final order. It also provides that in case if the bail order is rejected or interim order is not passed than the officer-in-charge can arrest the applicant and also made mandatory if the public prosecutor requests the court that presence of the applicant is necessary in final hearing than the court may order the applicant to be present at the final hearing.

1.2] which court can grant anticipatory bail?

        The appellant may approach with a bail petition either to the Sessions Court or the High Court which has jurisdiction this is provided in Section 438(1). However normally it is to be presumed that the Court of Session would be first approached for the grant of Anticipatory Bail unless an adequate case is made out for straightaway approaching to the High Court directly without first coming before the Court of Session. In Onkar Nath v. State, the Allahabad High Court took the view that a bail application under section 438 may be moved in the High Court without the applicant taking recourse to the Court of the Session. The opinions expressed by the supreme court in some cases seem to favor the view that the question of granting anticipatory bail to any person who is allegedly concerned with the offence must for all practical purposes be considered by the courts within whose territorial jurisdiction such offences could have been perpetrated.

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        In Y. Nagaraju v. State of Andhra Pradesh, anticipatory bail has been granted by the Special Judge for Trial of Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 who was not the competent authority to grant such bail. The appellant in this case went to the Special Judge in anticipation of his arrest under the said Act. But when the case went to the High Court of Andhra Pradesh the Court struck down the bail as beyond the power of the judge. 

        The question whether a person ...

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