Anticipatory Bail In India
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Project On Code of Criminal Procedure Critical Analysis of Law of Anticipatory Bail with Special Reference to Cases Decided by Supreme Court of India.
Submitted By Roll No. 06 VIIth Semester B.A.LL.B (Hons.)
Condition Precedent for making application………………..6
Bail and Anticipatory Bail: Distinction………………………8.
Notice to Public Prosecutor……………………………………10.
Cancellation of Anticipatory Bail……………………………….13
Introduction „„There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumptions that the former are more likely to commit a crime and the later are more likely to commit it. Lord Russell said “It was the duty of magistrate to admit accused person to bail, whenever practicable, unless strong grounds for supposing that such person would not appear to take their trial .It was not the poorer class who did not appear, for, their circumstances were such as to tie them to the place where they carried their work .They had not the golden wings with which they fly from justice. Section 438 of Code of Criminal Procedure 1973, makes provision enabling the superior courts to grant anticipatory bail i.e. a direction to release a person on bail issued even before the person is arrested. The Law Commission considered the need for such a provision and observed: “The necessity for granting anticipatory bail arises mainly because sometimes influential person try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. 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 no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”
Meaning The word “anticipatory bail” is not found in Section 438 or in its marginal note. In fact “anticipatory bail” is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants “anticipatory bail”, what it does to make an order that in event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and, therefore, it is only on arrest that the order granting “anticipatory bails” becomes operative. It has also been held that anticipatory bail cannot be granted to a person to do something which is likely to be interpreted as commission of a crime even if the offender intended it as something in exercise of his rights. The expression “anticipatory bail” is convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. The Section, however, makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the magistrate. The issuance of warrant by the Magistrate against a person justifiably gives rise to such an apprehension and well entitles a person to make a prayer for anticipatory.1 Issuance of summon for appearance also entitles an accused to apply for anticipatory bail.2Section 438 empowers the High Court and the Court of Session to grant anticipatory bail i.e. a direction to release a person on bail issued even before the person is arrested.
Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H) P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).
Object Under the old Code of 1898, there was a conflict of judicial opinion about the power of court to grant anticipatory bail. Some High Courts were of the view that the Court could grant such bail but the majority view was that there was no such power in the Court. The law commission, therefore, in its Forty-first Report recommended introduction of a provision to grant “anticipatory bail” and stated “the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. 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 no justification to require him to first to submit to custody, remain in prison for some days and then apply for bails.” Commenting upon the provision, the Law Commission, in its Forty-eighth Report observed “We agree that this would be a useful addition, though we must add that it is only in very exceptional cases that such a power should be exercised.”
Condition Precedent For Making Application Before an application may be moved under this section(1) There must exist reasonable ground for the applicant to believe that he may be arrested, (2) Secondly, there must be accusation of a non-bailable offence against him. The use of expression “reason to believe” shows that belief that the applicant may be so arrested must be founded on reasonable ground. Mere „fear‟ is not belief, for which reason it is not enough for the applicant to show that he has some short of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for non-bailable offences must be capable of being examined by the court objectively. Vague and general allegations are not enough. It was held in Joginder alias Jindi v. State of Haryana, that a petition for anticipatory bail under Section 438 Cr.P.C. in relation to bailabe offence is misconceived as Section 438 of Cr.P.C . related to non-bailable offences. It was further observed that use of expression “reason to believe” in Section 438 shows that the apprehension must be founded on reasonable grounds and grounds must be capable of being examined. It requires the mere fear of being arrested is not sufficient a sufficient groung. It was also held that a blanket order that applicant shall be released on bail whenever he is arrested for whichever offence whatsoever cannot be passed. It was also pointed that direction under Section 438 is to be issued at pre-arrest stage but it becomes operative 6|Page
only after arrest. The Court cannot restrain arrest . An interim order restraining arrest if passed while dealing with application under Section 438 would amount to interference in investigation and therefore such an order cannot be passed under Section 438. According to sub-section (3) of this section if a person, who has been granted anticipatory, is arrested without by an officer in charge of a police station and he is prepared, either at the time of arrest or at any time while in the custody of such officer, to give bail, he shall be released on bail.
MALIMATH COMMITTEE REPORT Malimath committee has observed in its report that the provision as to anticipatory bail has been misused by rich and influential people. The committee however opined to retain the provisions subject to two conditions: 1-Public prosecutor should be heard by the court before granting an application for anticipatory bail and 2- Petition for anticipatory Bail should be heard only by the court of competent jurisdiction. It may be stated that section 438 (1), as amended by the Code of Criminal Procedure (Amendment) Act, 2005 now provides for hearing of Public Prosecutor before granting an application for anticipatory bail.
Ambit and Scope Section 438 empowers a High Court and a Court of Sessions to grant anticipatory bail. It is not as if bail is presently granted by the Court in anticipation of arrest. But it means that in the event of arrest, a person shall be enlarged on bail. This power is extraordinary in character and it is only in exceptional cases where it appears that a person might falsely implicated, or a frivolous case might be launched against him, or “ 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” that such power can properly be exercised. This power being rather unusual in nature, is entrusted only to the higher echelons of judicial service, namely a Court of Session and a High Court. It is a power exercisable in case of an anticipated accusation of non bailable offence and there is no limitation as to the category of non bailable offence in respect of which the power can be exercised by the appropriate court.1
Bail and Anticipatory Bail: Distinction The distinction between an ordinary bail and an anticipatory bail is that whereas the former is available and granted after arrest, and therefore, means release of a person from the custody , the latter is available and granted in anticipation of arrest and is therefore is active at the very moment of arrest. Again, there is no warrant for reading into Section 438 anything to limit the discretion of the court by invoking the considerations mentioned in Section 437(1). The discretion has to exercise judicially by a High Court or Court of Session considering the facts and circumstances of each case.
Balachand Jain v. State of MP, AIR 1977 SC 366. Gurubaksh Singh v. State of Punjab AIR 980 SC1632
Considerations: As seen above, relevant considerations governing the discretion of the court in granting anticipatory bail are materially different from granting bail to a person who is arrested in the course of investigation or a person who is convicted and his appeal is pending. Anticipatory bail to some extent extrudes in the sphere of investigation of crime and the court, therefore, must be cautious and circumspect in exercising such power. When a person is accused of serious offence, such as murder, exceptional and compelling circumstances must be made out for granting bail.
Forum Section 438 confers concurrent jurisdiction of granting anticipatory bail on High Court and Court of Session. The power being unusual in nature is entrusted only to the echelons of judicial service. Some High Courts have taken the view that ordinarily, a Court of Sessions must be first moved by an applicant. It is, however, submitted that when concurrent power is conferred on the High Court as well as on the Court of Session, no such restriction can be read in Section 438. Again, some High Courts have held that after the Court of Sessions rejects an application, an applicant cannot move the High Court for same relief unless circumstances have changed. It is submitted that this view is erroneous. In Chandra Erappa v. State, the High Court of Karnatka rightly observed: “ Of course , there can be no doubt as that in the hierarchy, Court of Session is subordinate to the High Court; a party who makes an application under Section 438 of the code before the Sessions Court could approach the High Court, if his application had been rejected by the Court of Session, but not vice versa. In other words, if the party chooses to file an application under Section 438 of the Code before the High Court and it is rejected, he cannot thereafter approach the court of Session under the same provision and on the same grounds”
Notice to Public Prosecutor There is no provision in Section 438 for issuing notice to public prosecutor and hearing by the court before granting anticipatory bail. However as held by the Supreme court in Gur Baksh Singh v. State of Punjab , a notice should be issued to the Public Prosecutor or the government advocate before passing final order granting anticipatory bail. Therefore if there are circumstances justifying ex parte interim order, the court may pass final order after hearing both sides. It may, however may be stated that sub-section (1A) of section 438 as amended by the Code of Criminal Procedure (Amendment) Act, 2005, now expressly provides that before finally deciding an application for anticipatory bail, the court will hear the Public Prosecutor.
Conditions The high court and the court of sessions to which the application for anticipatory bail is made can impose such conditions as the case may warrant. The conditions mentioned in Section 438(2) are merely illustrative and not exhaustive. The court while granting anticipatory bail must remember that the investigation has not yet been completed and, therefore, it is the duty of the court to ensure that the investigation should not be hampered or intervened with in any manner. The court however, cannot impose a condition other than warranted by law. Thus, no direction can be issued to effect that the applicant, if arrested should be released on bail provided he produces the alleged stolen property before the investigating officer. Such order can be set aside by the High Court in revision or by exercising inherent powers.
Duration An order of anticipatory bail passed under Section 438(1) need not to be limited in the point of time. The Court may, however, limit the operation of the order and direct the applicant to obtain an order under Section 437 or Section 439 of the code within that period. An order of anticipatory bail does not ensure till the 10 | P a g e
end of trial, but must be for a limited duration till the trial courts has necessary material before it to pass such orders as it thinks fit. Grant of unconditional blanket protection is untenable and liable to be set aside.
Procedure Section 438(2) is “really a machinery provision” for working out an order passed under Section 438(1). It envisages a situation where the court decides to proceed against the accused who has been granted anticipatory bail. All subsequent steps must be in conformity with the order issued by the Court under Section 438(1).
Blanket Order A blanket order of anticipatory bail is an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. Such a blanket order of anticipatory bail should not generally be granted. Since the section requires the applicant to show that he has “reason to believe” that he may be arrested, such belief must be formed only if there is something tangible to go by on the basis of which it can be said that the applicant‟s apprehension is genuine. Normally, therefore, a direction should not be issued under Section 438(1) to the effect that the applicant should be released on bail “whenever arrested for whichever offence whatsoever.” A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even 11 | P a g e
if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
Rules for exercising discretion In Guru Baksh Singh v. State, the Full bench of Punjab and Haryana High Court laid down certain principles as to when anticipatory bail should be granted under Section 438 of the Code. Reversing the decision of the High Court, the Supreme Court laid that Court has to decide the cases coming before it after considering the facts and circumstances without laying down a cast iron rule or adopting straight jacket formula. The court must be left free to grant or refuse bail by exercising discretion judicially in the light of facts and situations placed before it.
Successive Application A second application after rejection of the first one under Section 438 is maintainable if there are additional facts, further developments and/or different considerations.
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Cancellation of Anticipatory Bail Neither Section 438 nor any other section in the Code makes any clear provision as to whether the order granting anticipatory bail can be cancelled even before the regular bail is actually granted. However it has been held that when Section 438 permits the making of an order and the order is made for granting anticipatory bail, it is implicit that the court making such an order is entitled upon appropriate consideration to cancel or recall the same. Thus, an order of anticipatory bail granted by Court of Session can be recalled or cancelled by that Court or by the High Court. But an order passed by the High Court cannot be cancelled by the Court of Session.
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Conclusions It is submitted that the following observations of Chandrachud CJ in Gurbak Singh v. State lay down correct law regarding exercise of power to grant anticipatory bail under Section 438 of the code, therefore are worth quoting: “It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several others considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead the making of charges, a reasonable possibility of the applicant‟s presence not being secured at the trial, a reasonable apprehension that the witness will be tampered with and “ the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.” Thus it can be said that there may be situations where arrest and detention may be unjustified and these powers are sometimes misused. Therefore, a duty is cast on the court in such situations to examine the facts carefully and to ensure that no prejudice is caused to the investigation. It is delicate balance whereby the liberty of the citizen and the operation of the criminal justice system have both to be equally safeguarded. Where it is pointed out that the action is mala fide or tainted the courts are required to do justice by preventing harassment and unjustified detention. The court has to keep in mind while deciding an application for anticipatory bail the nature and seriousness of the proposed charges and the larger interests of the public or the state.
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