Saturday, December 1, 2012

Anticipatory Bail : Section 438, Cr.P.C., 1973.

The term anticipatory bail implies a direction to release a person on bail issued even before the person is arrested. The necessity of introduction of Section 438 of the Criminal Procedure Code was 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.

A direction under Section 438 of Criminal Procedure Code was intended to confer conditional immunity from actual touch or confinement of body implicit in the mode of arrest contemplated under Section 46(1) of the Cr.P.C. Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence".

The provisions of Section 438 in the Cr.P.C. are in the nature of an exception and while construing such a provision the Court ought not to stretch it beyond the plain meaning of the words employed in the said Section.

Section 438- Direction for grant of bail to person apprehending arrest-
(1) where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely 
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and 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, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

In Gurbaksh Singh Sibbia and others vs. State of Punjab (AIR 1980 SC 1632), the Supreme Court has laid down some guidelines regarding discretion in granting anticipatory bail some of which are as follows-

(i) The use of the expression 'reason to believe' in section 438(1) indicates that Court grants relief only being satisfied on objective material's examination;

(ii) Filing of FIR is not a condition precedent. The provisions for the anticipatory bail in section 438 of the Code applies even when there is no 'first information report' and no case for commission of 'a non-bailable offence' has been registered against a person. If a person has 'reason to believe' that he may be arrested on an accusation having committed 'a non-bailable offence', although no first information report was filed against him he may appear before the Court and apply for an order for his release on bail in the event of his arrest.

(iii) Bail to be effective till the conclusion of trial. Where order granting anticipatory bail is confirmed by concerned Court (High Court or Court of Session), such benefit would generally be enjoyed by applicant until his trial is not concluded.

(iv) Legally it is possible to pass an ex parte order to anticipatory bail but ordinarily an order of anticipatory bail should not be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application for anticipatory bail.

Further rejection of an application for grant of anticipatory bail by Court of Session, not dis-entitled person to move High Court.

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