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Anticipatory bail pdf

438, 1973 of the Code of Criminal Procedure has been amended by the Code of Criminal Procedure (Amendment) Act, 2005 (anticipatory bail), which was referred by Dr. Justice Ar Lakshmanan, Chairman, Law Commission of India to the Minister of Law and Justice, Ministry of Law and Justice, Government of India on
26th December, 2007. Dr. Justice Ar Lakshmanan (Former Judge, Supreme Court of India) Chairman, Law Commission of India ILI Building (IIND Floor), Bhagwandas Road, New Delhi-110 001 Dr. H.R. Bhardwaj, Hon'ble Union Minister of Law and Justice, Government of India, Shastri Bhawan, New Delhi-110 001 Dec
26, 2007 D.O. 6 (3) 128/2006-LC (LS) Dear Dr. Bhardwaj Ji, Deputy: 203rd Report of the Law The Commission on Anticipatory Bail I am very happy to forward the 203rd Report of the Law Commission on Section 438 of the Code of Criminal Procedure, 1973, as amended by the Code of Criminal Procedure (Amendment)
Act, 2005, relates to anticipatory bail. The government has kept it in abeyance in view of the objections of lawyers to implement the revised section. Before taking a final decision in the matter, the Government decided to seek the opinion of the Expert of the Commission on the revised section. Therefore, the current
reference. Ministry of Home Affairs has issued section 438 CR.P. on September 19, 2006 in its DO Letter No. 12/53/2006-Judl.Cell. Sought the opinion of the Law Commission of India on the revised version of C. This section has been amended to the effect that:- (i) the power to grant anticipatory bail should be exercised
by the Sessions Court or the High Court in view of certain factors; (ii) Considering these factors, the court will either reject the application or issue an interim order for grant of anticipatory bail in the first time; (iii) where the court has rejected the application or has not passed any interim order, it shall be open to the officer
in charge of the police station to arrest the applicant without warrant on the basis of the charge caught in the application for grant of anticipatory bail; (iv) where the court gives an interim order for grant of interim bail, it shall not immediately give notice to the Public Prosecutor and Superintendent of Police for less than
seven days so that they can be given an opportunity to hear the application when the application is finally heard; The presence of an applicant seeking anticipatory bail shall be mandatory at the time of final hearing of the application if the court considers such presence necessary in the interest of justice on the application
made by the Public Prosecutor for such attendance. The main objection against the new provisions has been the personal presence of the applicant at the time of final hearing of the application. main It has been done that the applicant may be arrested in case of rejection of his application and thus the applicant will be
deprived of his right to transfer to the High Court for necessary relief. In this 203 report, the Law Commission has conducted a thorough study of the scope and scope of the existing and amended section in respect of case law on the subject before making its recommendations. A draft text is also given to modify the
section in the concluding chapter of the report. As regards the sub-section (1) of section 438, as amended, allows the arrest of the applicant by the police without warrant on the basis of charges caught in the application for grant of anticipatory bail, the Law Commission believes that the enforcer is more of an explanatory
nature and makes it clear that if otherwise no ban will be imposed against such arrest by the police under such appropriate circumstances. To do. The commission said m. In the case of C Abraham and another V, the correct law was laid down by the Hon'ble Supreme Court on this aspect. Maharashtra and other States,
(2003) 2 SCC 649. Accordingly, the power of arrest has to be exercised not in a mechanical manner but with caution and vigilantity. The only fact that bail applications are rejected is there is no basis for directing the immediate arrest of applicants. There may be cases where an application is rejected and yet the
applicant is not put for trial as no material is found against him after investigation. In this case, the Supreme Court held that the High Court has moved on to the assumption that since petitions for anticipatory bails were dismissed, there was no alternative for the state, but to arrest those people. The Supreme Court said
the notion was wrong. Accordingly, the Commission has concluded that it is not necessary to insert a the avisor in section 438(1) and its omission is recommended. As regards sub-section (1B) relating to the presence of the applicant at the time of final hearing, the Law Commission has gone deeper into the restraint and
closeness of custody, for which the applicant may be subjected to reference to the court order under sub-section (1b). The Law Commission has come to the conclusion that when the applicant appears in court in compliance with the court order and is subjected to court directives, he can be seen in court custody and this
may lead to the infructuous relief of anticipatory bail. Accordingly, the Law Commission has 438 CRP. The omission of sub-section (1B) of C is recommended. During its examination of the subject, the Law Commission noted the plethora of case-law in which order under section 438 as well as grants to the Sessions
Court and the High Court should be approached under grant, or as the case may be, denial Bail has been considered following an application for the same relief and settled by one of two alternative judicial forums. It has been noted that concurrent powers under the section are vested in their original jurisdiction in the two
courts. This is the reason why the order to grant or deny bail may lie the interlocutor order against which no amendments lie. But this situation was achieved when the law does not provide for an interim and final order on anticipatory bail applications and such applications are usually filed in pending cases. Now, when
registration of FIR for service of anticipatory bail application is also not considered necessary and final orders need to be passed after hearing applicants and state authorities, the scenario has actually changed. Accordingly, the Law Commission has recommended inserting a provision in section 438 on the lines of sub-
section (3) of section 397 which provides an option to choose either a Sessions Court or a High Court which vests concurrent powers of amendment and once using that option, it is prohibited to resort to another alternative platform for the same relief. However, all other existing measures against such final order will be
available except to the above extent. In addition, the benefit of the amendment under section 397 is recommended and, to this end, even with a view to turning the matter into a dispute, it is recommended to give an explanation to clarify that the final order on the anticipatory bail application shall not be treated as a
negotiating order for the purposes of the Code. Thus, the Law Commission has recommended an amendment to the amended Section 438. (i) Sub-section (1) of section 438 shall be deleted. Sub-clause (1b) will be omitted. (iii) A new sub-clause may be inserted on the lines of section 397 (3). (iv) An explanation should
be inserted explaining that the final order on the application seeking direction under the section shall not be imposed as a negotiating order for the purposes of the code. The report contains the text of section 438, hence amended in its last chapter. So, we request you to kindly issue directions for transmission to the
Ministry of Home Affairs on this 203rd Report. With respect, with respect, yourss honestly, Above Section 438 of dr. Ar Lakshmanan NCL Penal Procedure Code, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail) Chapter-1 Introduction 1.1 This report relates to Section 438,
1973 of the Criminal Procedure Code as amended by the Code of Criminal Procedure (Amendment) Act, 2005. This section provides for directions from the competent jurisdictional court i.e. The incident of his arrest. It is known as 'anticipatory bail', that is to say, bail in anticipation of arrest. The revised section has not
yet been implemented. 1.2 It is expedient to summarise the origin of this report so that its scope can be properly understood and appreciated in its correct perspective. 1.3 Its D.O. Letter No. 12/53/2006-Judl.Cell, dated 19th September, 2006, the Ministry of Home Affairs, Government of India had given the present
reference, the respective extracts of which have been read as follows: Clause 38 provides for amending section 438 CR in the Code of Criminal Procedure (Amendment) Act, 2005. C. (ii) if the court does not reject the application for grant of anticipatory bail, and gives an interim order of bail, it should immediately give
notice to the Public Prosecutor and Superintendent of Police and the question of bail will be re-examined in the light of the relevant disputes of the parties; and (iii) The presence of a person seeking anticipatory bail in the court should be made mandatory at the time of hearing of the application for grant of anticipatory bail
under certain exceptions. After it was passed by parliament, the fraternity of lawyers from different parts of the country, particularly from the state of Tamil Nadu, has granted section 438 CR P relating to anticipatory bail. Opposed to certain provisions of the Act including the proposed amendment to C. The main objection
against the new provision is that the person seeking advanced bail has to appear before the court when the petition is processed. The main apprehension is that the suspect can be arrested as soon as the sessions court rejects his anticipatory bail plea if he is present in the court. The fraternity of lawyers feels such a
provision would deny the accused the right to go to the high courts for relief/appeal. Grant of anticipatory bail is a force both in the Sessions Court and in the High Court. Lawyers fear the suspects could be arrested before they can end their option of moving the High Court. In view of the strong opposition against this
provision by the lawyers fraternity, the enforcement of this provision was kept in abeyance and section 438 CRP. It was decided to seek expert opinion of the Law Commission of India on the revised version of C. Accordingly, section 438 CRP from the Law Commission. The revised version of C was requested to examine
and suggest a revised version which may contain the necessary provisions so as to give the accused a fair opportunity to approach the high courts with his plea before he is apprehended by the police. 1.5 On a question of this Commission, Ministry of Home Affairs His Office Memorandum No. 12/53/2006-Judl.cell, dated
August 8, 2007 is as follows: Section 438 CR.P. The amendment made in C was made on the basis of the suggestions made by the Inspector General of Police Conference, 1981. On the orders of the Committee of Secretaries, a group of officers was constituted along with Director, DIRECTOR, BPR&D, Delhi,
Additional Secretary of the Ministry of Home Affairs and Joint Secretary in the Department of Legal Affairs to examine the suggestions made by the above Inspector Generals of Police. The group of officers, as suggested by the Inspector General of Police, has suggested section 438 CR.P. C agreed with the suggestion
to amend and accordingly it was incorporated in the Code of Criminal Procedure (Amendment) Bill, 1994 which was introduced in the Rajya Sabha on 9th May, 1994. The proposal, which was considered and passed in Parliament, was considered and examined at various levels including the Ministry of Law, the
Parliamentary Standing Committee on Home Affairs, etc. After the bill was considered and passed in Parliament during the budget session of 2005, a fraternity of lawyers from several parts of the country, particularly the state of Tamil Nadu, had section 438 CRP. Strongly opposed to certain provisions including
amendments made in C. Therefore, it was proposed to give effect to the provisions of the Act which have not been objected to by a large section. As regards the provisions which did not find in favour of the fraternity of lawyers, it was proposed that they could be re-examined by an expert group or the Law Commission of
India. Cabinet note in which the proposal was approved by the Cabinet in its meeting held on 4th March, 2006. Later, a reference was made to the Law Commission of India requesting the Law Commission to amend Section 438 CRP. Examine the possibility of revising C with adequate security measures to neutralize
the apprehension expressed by the fraternity of lawyers. Accordingly, section 438 CRP from the Law Commission. The revised version of C was requested to examine and explore the possibility of suggesting a revised version to make the provision workable with adequate safeguards to protect the rights and freedoms of
the citizen. Chapter 2 of the pre-amended Law Code of Criminal Procedure, 1973 contains provisions of bail and bonds in Chapter XXXIII. Section 438 provides for the direction of the court to grant bail to the person suspected of arrest. Such bail is popularly referred to as anticipatory bail as it is granted in anticipation of
arrest. This is a new provision in the present code. There was no specific provision in accordance with the present section 438 in the earlier Code of Criminal Procedure, 1898. In the absence of specific provision under the old code, there was a difference of opinion The High Courts of different states have the primacy to
see whether courts have the inherent power to pass a bail order in anticipation of arrest, seeing that it does not have such power. (See Shri Gurbaksh Singh Sibia and others v. State of Punjab (1980) 2 SCC 565). 2.2 New provision in section 438 (the recommendation of the Law Commission is inserted in the code in its
41s report. In this report, the Law Commission has made the following observations on anticipatory bail i.e. Anticipatory Bail:- The suggestion to direct the release on bail before the arrest of a person (commonly known as anticipatory bail) was carefully considered by us. While there is a clash of judicial opinion over the
court's power to grant anticipatory bail, the majority believe that there is no such power under the existing provisions of the Code. The need to grant anticipatory bail arises mainly because sometimes influential individuals try to detain their rivals in prison for a few days and humiliate them or implicate them for false
reasons for other purposes. With the pressure of political rivalry in recent times, this trend is showing signs of a steady increase. Apart from false cases, where there are reasonable grounds to maintain that a person accused of an offence is unlikely to escape, or otherwise abuse his freedom while on bail, there seems to
be no justification for first submitting him to custody, staying in jail for a few days and then applying for bail. We recommend accepting this suggestion. We further believe that this particular power should be granted only to the High Court and the Court of Sessions and that this order should take effect at or after the time of
arrest. ........... We carefully considered the question of laying down certain conditions in the law under which only anticipatory bail can be granted. But we found that it may not be practical to make a full calculation of those situations; And besides, laying such conditions can be pre-identified (partly at any rate) in the whole
case. We shall therefore leave it to the discretion of the Court and would prefer not to have such discretion in the statutory provision itself. Of course, the Superior Court shall exercise its discretion correctly and will not make any comment in the order granting anticipatory bail which will have a tendency to adversely affect
the impartial trial of the accused. (PP 320-321). Based on the Law Commission's report of 41 5 00 00 0000, the Government introduced the Code of Criminal Procedure Bill, 1970. In respect of clause 447 included in the Code of Criminal Procedure as section 438, it was stated in the statement of the project and reasons
of the Bill of Criminal Procedure: As per the recommendation of the Commission, a new provision is being made. To grant anticipatory bail, the best court, i.e., the person may be instructed to release a person on bail before he is arrested. In order to avoid the possibility of obstructing the investigation by the person,
special provision is being made that the court granting anticipatory bail can impose such conditions as he thinks appropriately. These conditions may be that a person will provide himself to the investigating officer if necessary and will do nothing to obstruct the investigation. 2.4 From the statement of goods and reasons
for applying Section 438 of the Code, it is clear that, on the basis of the recommendation of the Law Commission, the makers of the code allegedly devised an instrument by which a citizen is not forced to face humiliation on the example of influential individuals who try to implicate their rivals in false cases; But the Law
Commission, at the same time, issued a note of caution that such power should not be exercised in a routine manner. {See Durga Prasad V. State of Bihar, 1987 CRI. LJ 1200]. The bill was referred to the Joint Committee of both the Houses. In the meantime, the Government decided to seek the opinion of the Law
Commission on certain points, which were as follows: Since there are different views on some of the points being considered by the Joint Committee on the said Bill, the Government would like to have the views of the present Law Commission on some of the specific points mentioned thereafter. Since the bill, clause by
clause has already been considered by the Joint Committee of Parliament, it would not be necessary to send the entire Bill afresh for the opinion of the Law Commission. But the government would like to have a sumat opinion of the Commission on some specific points that have arisen for consideration. 2.6 These
points, other aaliyah, included ... Provision for grant of anticipatory bail. The Commission submitted the 48th Report on these points. As far as anticipatory bail is concerned, the report says as follows: The Bill provides for grant of anticipatory bail. This is largely in accordance with the previous recommendation made by
the Commission. We agree that this would be a useful addition although we have to add that it is in very exceptional cases that such power should be exercised. We are also of the view that this provision should not be made at the behest of unscrupulous petitioners, the final order should be made only after notice to the
public prosecutor. The initial order should only be interim. Furthermore, the relevant sections must make it clear that this directive can only be issued for reasons to be recorded and if the Court is satisfied that such a directive is necessary in the interests of justice. It will also be convenient The notice of final order along
with the interim order will be immediately given to the Superintendent of Police. [48th Report of Law Commission of India, July 1970, P.10 (para 31)]. It appears that the above recommendations did not favour the Government as can be collected from the text of section 438, as was ultimately enacted in the Code of
Criminal Procedure, 1973. The Joint Committee of Parliament made the following observations in respect of section 436, which was the original clause 447 of the Code of Criminal Procedure Bill, 1970: The Committee is of the opinion that certain specific conditions for grant of anticipatory bail for grant of anticipatory bail
should be laid down in the clause itself. Accordingly, this clause has been amended. 2.10 Clause 436 was enacted as Section 438 of the Code of Criminal Procedure, In 1973, which reads as follows: Chapter III Legislative Change 3.1 In order to overcome some of the difficulties experienced in its functioning, several
amendments were made in the Code of Criminal Procedure, 1973 for specific purposes in 1974, 1978, 1980, 1983, 1988, 1990, 1991 and 1993. In May 3-2, 1994, the Government of India introduced the Code of Criminal Procedure (Amendment) Bill, 1994 in the Rajya Sabha, which includes several amendments to the
code to be proposed in section 438. Prior to 3.3, in the IGP Conference, 1981, it was, inter-alia, suggested that section 438 be amended so that the powers to grant anticipatory bail from the Court of Sessions could be taken away and vested only in the High Courts. In May 1983, the Ministry of Home Affairs constituted a
group of officers who considered the question of removal of the provision of anticipatory bail and felt that since, after the removal of the provision, the High Court would be able to grant bail under the inherent powers, this provision is not required to be removed. Sometimes, courts take a very liberal view in granting
anticipatory bail to offenders, so it was recognised that such powers should only be stripped of the court of session and vest in the High Court even though it would make it difficult for poor persons to take advantage of the provisions of anticipatory bail. Many a time, the accused person gets anticipatory bail even without
having to muscle before the court. Hence section 438 CRP C was proposed to be amended. If the court does not reject the application for grant of anticipatory bail and gives an interim bail order, it should immediately give notice to the public prosecutor or government advocate. Thereafter, the question of bail will be re-
examined in the light of the relevant disputes of the parties; and (iii) presence of The person seeking anticipatory bail in court must be made mandatory at the time of hearing of the application for granting anticipatory bail and provision has been made for certain exceptions to cover cases where a person is ill or cannot
appear in court due to certain unavoidable circumstances. 56 of 3.4 1988, a Parliamentary Bill was introduced in the Lok Sabha on 13th May, 1988, seeking, inter alia, to amend section 438, which omitted the words 'sub-section (1) and (2) of that section or the sessions court, but it was not done. On 35th May, 1994, the
Government of India introduced the Code of Criminal Procedure (Amendment) Bill, 1994 in the Rajya Sabha, while the Bill was before the Parliamentary Committee on Home Affairs, the Government of India had referred to the Law Commission to make comprehensive amendments to the Criminal Procedure Code and
suggest reforms in the law. Accordingly, the Law Commission submitted its 154th Report on the subject. As far as anticipatory bail is concerned, it may be expedient to resubmit the relevant extracts of this report beneath it. Its scope has been under judicial scrutiny since the provision of anticipatory bail under section 438
came into force. The major case on the subject is Gurbaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565. The Supreme Court, while reversing the full bench judgement of the Punjab and Haryana High Court in the matter (Shri Gurbaksh Singh Sibia and other V. Punjab State, AIR 1978 P&H1, which gave a restricted
interpretation of the scope of section 438, held that in the context of article 21 of the Constitution, any statutory provision relating to personal liberty (section 438) cannot be reduced by reading restrictions and limitations. The court said: Since denial of bail is to deprive individual liberty, the court should lean against
imposing unnecessary restrictions on the scope of Section 438, especially when such restrictions have not been imposed by the legislature in the terms of that section (p 586). The apex court also said that the conditions under which bail can be granted under 437 (1) should not be read in section 438. Allowing unfettered
jurisdiction to the High Court and the Court of Session, the Supreme Court hoped that a convention could develop under which the High Court and the Sessions Court would exercise their discretionary powers in their wisdom. The court gave the following explanations on some points, which gave rise to
misunderstandings: - The functioning of Section 438 has been criticised for obstructing an effective investigation into serious crimes, criminally intimidating and insulting accused witnesses and abusing their freedom to tamper with valuable evidence and even be effective. , impressive. Powerful accused resort to this and
the poor, because of their indigent circumstances, thus feel that some are more similar than others in the legal process. In view of the above circumstances, some State Governments have made local amendments in the Criminal Procedure Code. The Uttar Pradesh legislature has repealed 438 by the Amendment Act of
1976. The West Bengal legislature made amendments in 1990 covering certain limits on the power to grant anticipatory bail. They are concerned that applying to the High Court or sessions court to grant anticipatory bail cannot remove the police from catching criminals; (ii) The High Court or the Sessions Court is to
dispose of the application for anticipatory bail within thirty days from the date of such application and (iii) no final order shall be given in offences punishable by death, life imprisonment or imprisonment for a period of less than 7 years, without giving a minimum of seven days notice to the State for submission of its case.
Clause 43 seeks to amend section 438 of the Code of The Criminal Procedure Amendment Bill, wherein the recommendations of the Law Commission have been amended in its 48th report and also on some other grounds mentioned in the context of the above in the following manner: Various workshops expressed
diverse views regarding maintaining or removing the provision of anticipatory bail. One view is that it is being misused by the rich and influential sections of the accused in society and therefore to be removed from the code. The second idea is that protecting individual freedom is a salutary provision and therefore to be
upheld. In some instances, its misuse cannot in itself be the basis for its deletion. However, some compulsion may be imposed to reduce such abuse. However, we are of the opinion that the provisions contained under section 438 in respect of anticipatory bail should remain in the Code of Law but are subject to
amendments suggested in clause 43 of the Code of Criminal Procedure (Amendment) Bill, 1994 which prescribe adequate safeguards. (pages 27-29) Chapter IV Amended Law 41 The Code of Criminal Procedure (Amendment) Act, 2005 came into force on 23rd June, 2006 except for some of its sections including
section 38. Section 38 relates to amendment to section 438 of the Code. Accordingly, for existing sub-clauses (1), new sub-sections (1), (1a) and (1B) are replaced. As mentioned above, the revised section has not yet come into force. 4.2 Section 438, replaced by the Code of Criminal Procedure (Amendment) Act, 2005,
has been resubmitulated below: 438(1) Where any person has reason to believe that he may be arrested on charges of committing a non-bailable offence, he may apply to the High Court or Sessions Court for a direction under this section that in the event of such arrest. , he will be released on bail; and The court, after
considering, the other Aaliyah, has the following factors, namely: (i) the nature and gravity of the charge; (ii) the antecedents of the applicant including the fact that he has previously undergone imprisonment on conviction by the court in respect of any cognizable offence; (iii) possibility of the applicant fleeing justice; and
(iv) where the applicant has been charged for the purpose of injuring or insulting, he has been arrested either immediately rejecting the application or issuing an interim order to grant anticipatory bail: provided that, where the High Court or, as the case may be, the Sessions Court has not passed any interim order under
this sub-section or rejected the application for grant of anticipatory bail. , on the basis of the allegation caught in such application, the applicant will be open to the officer in charge of the police station for arrest without warrant. (1A) While the court gives an interim order under sub-section (1), the notice will be due to not
be less than seven days immediately with a copy of such order to be given to the Public Prosecutor and Superintendent of Police as well as for the purpose of giving the public prosecutor a proper opportunity for hearing. (1B) The presence of an applicant seeking anticipatory bail will be mandatory at the time of final
hearing of the application and passing of final order by the court, if on the application made by the public prosecutor, the court considers such presence necessary in the interest of justice. (2) when the High Court or Sessions Court gives any direction under sub-section (1), it may include such conditions in the light of the
facts of the particular case, as it may seem appropriate, including the condition that the person shall provide himself for questioning by the police officer if required; (ii) a condition that the person shall not direct or indirectly make any inducement, threat or promise to anyone familiar with the facts of the case so that he may
refrain from disclosing such facts to the court or any police officer; (iii) there is a condition that the person shall not leave India without the previous permission of the court; (iv) Under sub-section (3) of section 437, such other condition may be imposed as if bail was granted under that section. (3) if such person is then
arrested without warrant by an officer in charge of a police station on such charges, and prepared at any time in the custody of such officer at the time of arrest or for granting bail, he shall be released on bail; And if a magistrate takes cognizance of such an offence, decides that a warrant should be issued against the
person in the first time, he will issue a surety. In accordance with the direction of the court under sub-section (1). Objections of Chapter V Lawyers to amend Section 51 The Madras Bar Association appointed a committee under the Chairmanship of a former State Public Prosecutor to study various amendments to the
Code of Criminal Procedure made by the Code of Criminal Procedure (Amendment) Act, 2005. The committee gave its report to the effect that 40 of the 44 amendments were welcomed. The other four persons made in section 438 were opposed to being against the public interest and in the opinion of the Committee, the
independence of the judiciary and the rights of the accused would be seriously included. The other three sets of amendments relating to sections 25A, 324 and 378 (1)(1). Therefore, the Bar Association appealed to the Government that these amendments were not implemented. The relevant extracts of the
recommendations of the Committee in respect of section 438 are as under: Sub-section (1) of section 438 should be removed to the sub-dor (2). The apprehension of the accused increases manifold and in some cases there may not be any real possibility of arrest, though the accused may be apprehensive of arrest. In
order to allow the police charge officer to arrest without warrant, the applicant shall defeat the purpose of Section 438 based on the charge caught in such application. Similarly, the sub-clause will only make the hearing of the bail application more cumbersome and the presence of the accused envisaged in sub-section
(1b) at the time of final hearing of the application will enable the police officer to arrest the accused in case the bail application is dismissed. If the present amendment is made effective, section 438 CR P in 1973. The whole purpose of implementing C.C will be defeated. It is pertinent that both the Sessions Court as well
as the High Court have concurrent powers in entertaining the bail application. In case the applicant chooses to go to the Sessions Court, he/she has the right to transfer to the High Court in case his anticipatory bail application is rejected. In such circumstances, if the accused appears before the Sessions Court at the time
of hearing the anticipatory bail application and if he is arrested without giving him the opportunity to go to the High Court for anticipatory bail, the purpose of this provision will be defeated. 5.2 Advocates Association, High Court, Chennai also opposed the amended Section 438. It has rendered as follows: The proposed
amendment to section 438 of the Code of Criminal Procedure shall take away the rights of an alleged accused who cannot engage in any offence, without any chance of obtaining anticipatory bail before the court without involvement in any offence where the advance application is pending. In case of no anticipatory bail
The court, such a person can be arrested directly. The amendment provides an unexpected opportunity and embarrassment for advocates to bring the alleged accused before the hearing of anticipatory bail applications on an application made to the court by the public prosecutor and such advocates indirectly help the
police in arresting such accused without conducting any investigation into the alleged crime. This amendment would remove the rights and independence of a person so that he can submit his petition before the court without being arrested. Chapter - Sixth Analysis of Amended Law and Findings 6.1 Nature and Extent of
Amendments 6.1.1 Sub-section (1) Section 438 has been amended extensively by the Code of Criminal Procedure (Amendment) Act, 2005. New sub-sections (1), (1A) and (1B) are the option of existing sub-section (1) of section 438. Accordingly, the following major changes have been made to the section, namely 1.
Some of the factors that the court will consider, among others, are mentioned in sub-section (1), when dealing with the application for anticipatory bail. 2. Considering these factors, the court will either reject the application or issue an interim order granting anticipatory bail in the first time. 3. Where the court has either
rejected the application or passed no interim order to grant anticipatory bail, it would be open to the officer in charge of a police station to arrest the applicant without warrant on the basis of the charge caught in such application [sub-section (1)]. 4. Where the court gives an interim order, it is in order to give a notice of less
than seven days to the public prosecutor and superintendent of police with the objective of giving a fair opportunity of hearing to the public prosecutor when the application is finally heard by the Court [Sub-Section (1A)]. 5. The presence of an applicant seeking anticipatory bail will be mandatory at the time of final hearing
of the application and passing the final order by the court if on the application made by the public prosecutor, the court considers such presence necessary in the interest of justice. [Sub-section (1B)]. 6.1.2 The Court shall grant or reject anticipatory bail in view of the following factors, namely: (i) the nature and gravity of
the charge; (ii) the antecedents of the applicant including the fact that he has previously undergone imprisonment on conviction by the court in respect of any cognizable offence; (iii) possibility of the applicant fleeing justice; and (iv) where the applicant has been charged by arresting him so much for the purpose of
injuring or insulting him. 6.1.3 The changes mentioned on Sl. No.1 to 4 are already being followed in practice by the courts while dealing with applications for grants Bail, these without being formally included in the section. The change mentioned at Sl. No. 5 is the only new addition. Objections to the amendments are
mainly directed against the changes mentioned above SL Nos 3 and 5. 6.1.4 Thus, it can be seen in Ratan Kumar V. State of Assam (1979) CRI. LJ NOC 143 (Gauhati), advertisement interim anticipatory bail was given to the pre-parte. The earlier order to grant bail on the hearing of both the sides was overturned. It was
believed that the latter order was not an order to be revoked but refused bail. 6.1.5 Although the hearing of the State authorities is not prescribed while considering granting anticipatory bail in the existing section 438, it is implicit in the provision that the State authorities should be given the opportunity to hear in the matter
as being the necessary party to such application. Krishna Kumar and others in the State of Assam and another V. R.K. Krishna Kumar and others, in AIR 1998 SC 144, the learned single judge of the Bombay High Court issued directions under section 438 that if arrested, the appellans should be released on bail without
giving an opportunity, i.e., the State of Assam and its Director General of Police may be released in spite of being made a party in each application for anticipatory bail. Given the accepted position of the High Court not hearing appellans, the Supreme Court bypassed the orders imposed only on that basis. Without
considering the question whether the Bombay High Court has jurisdiction to consider applications filed by the defendants in respect of offences committed in Assam, the Supreme Court also directed that a bench of the Guwahati High Court should dispose of the applications transferred after hearing the appellans. The
apex court also directed that the status quo will be maintained by the appellan as compared to the respondents as on date. 6.1.6 Shri Gurbaksh Singh Sibbia and others in V. The State of Punjab (1980) 2 SCC 565, the Supreme Court made the following observation, namely: Some minor modalities regarding passing of
bail order under section 438(1) had some discussion before us. Can a public prosecutor be passed a bail order under section without notice? It can be. But a notice should be issued immediately to a public prosecutor or government advocate and the question of bail should be re-examined in the light of the parties'
respective disputes. The advertising interim order must also be in line with the requirements of the section and at that stage also the applicant should be subjected to a suitable condition. (on page 591) 6.1.7 In a very recent case, Supreme The appellant kept aside the order placed by the High Court without service,
section 482 CRPP.C. Under the application converted to one under section 438 and provided interim protection. Section 438 or 439 CRP. In respect of C, declining the practice of converting applications filed under section 482 for bail into one. Savitri Goenka v Kusum Lata Damant and others, 2007 (12) in scale 799, Dr.
Arijit Pasayat said, Though the appeal was requested on several points, we find that the order of the High Court cannot be placed on one basis. Though it had issued a notice to the appellant, the matter was disposed of without hearing the appellant. 6.1.8 As such, it can be observed that the courts, as in practice,
normally pass an interim order in the first time and then after hearing the public prosecutor it is confirmed or recalled and annulled even though no specific provision has been made in Section 438 to this effect. Similarly, the factors considered in dealing with anticipatory bail applications, which are now mentioned in the
new section, are only examples of nature as well as other relevant factors, as well as while giving final orders on such applications despite the fact that these are not explicitly included in the previously amended section. 1977 SC 2447 in the state of Rajasthan, Justice Krishna Iyer said: The basic rule may perhaps be
kept as bail, not jail, except that other troubles can be created by the petitioner seeking to escape from justice or thwart the course of justice or other troubles as repeat offences or intimidating witnesses and increase on bail from court by the petitioner. In Jagannath V. Maharashtra State, 1981 KRJ 1808 (Bom.), the court
listed certain factors which are after arrest or prearest, i.e., the nature and severity of the charges, Any bail must be kept in mind, (ii) the nature of prosecution evidence, (iii) the severity of the possible punishment in the event of the prosecution succeeding, (iv) the status of the accused, (vi) the possibility of repeating
similar offences, and (vi) the possibility of tampering of prosecution evidence etc. Therefore, it may be stated that the amended section only attempts to formally do certain aspects which are being followed otherwise without formally incorporating into action. It should be borne in mind that legislation is an area that is
rarely fully complete. There may be conditions and practices that avoid formal translation into statutory laws but still continue to influence the conduct of state organs and their subjects. Such situations and/or practices may have been introduced at first in individual cases based on sound causes, reasoning and
justification. At their intrinsic value and inherent appeal, later, they develop into customary practices before crystallizing into compelling instances. When the impact is reached point, these conditions and/or practices will emerge as clear legislation through the passage of legislation. That is what we say, in law or
lawmaking. In the present case, such a daze law on anticipatory bail is included in the response in a formal legal order, except for the range of conditions set forth on 3 and 5 that are not in line with current judicial practices and procedures. Both these aspects are then dealt with in detail. 6.2 Note the avisor on sub-
section (1) of the amended section: 6.2.1 As far as the adever allowing arrest where either the court has not passed any interim order or rejected the application for grant of anticipatory bail, Based on averments in the anticipatory bail application only, the said power given by the avisor may cause incalculable harm for the
following reasons:- (i) A person primarily approaches the court for anticipatory bail for the reason that the complainant, with some malicious purpose, is seeking to falsely implicate him in a criminal case. Primarily, this is one of the reasons why a person wants anticipatory bail. There is no doubt that some genuine
criminals also make false allegations of ill-feeling and want to obtain anticipatory bail in that garb. 2 In order to get later people, there is an insult to arrest in the past also. It is here that the avisor for Section 438 fails to arrive at the right balance. (iii) Only because interim bail has been denied, in case where a notice has
been issued to the police, will actually thwart the advance application. The traditional idea was that once the anticipatory bail is filed, the person should not be arrested until it is settled. In fact, some police standing orders also stipulated that this procedure should be followed. (iv) This tever should be read less and should
mean that only where the anticipatory bail application is rejected, either pre-lateral or after notice and if a police officer section 157(1) CRP. Arrest under C considers necessary, then and then arrests must be made alone. Only because the anticipatory bail application is rejected, an innocent person should not be arrested
for the reason that he has set some hurdles as the basis for an apprehension of arrest. (v) Allowing arrest of an applicant seeking anticipatory bail If the court has not passed any interim order providing protection against his arrest, the pending bail application will be infructuous even without going into his qualifications.
Such arrests may affect overreach over the court and judicial process. (vi) Unless the above Putting ambiguity in the herth will cause difficulty. The Supreme Court has admitted that anticipatory bail applications can be filed in some cases before the FIR is lodged. (Shri Gurbaksh Singh Sibia and others v. State of Punjab
(1980) 2 SCC 565). In a case where an FIR is not lodged or an FIR is also not lodged (of which the applicant may not be aware himself), only because the anticipatory bail application is not passed, and the interim order is not passed or where anticipatory bail is dismissed as a matter of course on the basis of averments,
arrest should not be made. 6.2.2 The above presentations appear to contain a lot of substance, especially when we take into account the proper nature and scope of the arresting power and the manner in which it should be used in law. a measure equal to 1/6 inch. In the case of C Abraham and another V, it would be
pertinent to mention some very useful and brief observations made by the Supreme Court on the subject. State of Maharashtra and Others (2003) 2 SCC 649. 6.2.3 In this case, a complaint was lodged by the Provident Fund Commissioner alleging offence under sections 406 and 409/34 IPC against the Directors of
Maharashtra Antibiotics and Pharmaceuticals Limited (referred to as MAPL). MAPL was a joint venture of the Government of India and the state of Maharashtra and was declared a sick industry by the Board for Industrial and Financial Reconstruction. Some of the accused persons filed a petition in the High Court
seeking anticipatory bail under section 438 of the Criminal Procedure Code. Those petitions were dismissed by the High Court with its order of 7-9-2001. There was no appeal against orders rejecting those petitions. 6.2.4 On 10-1-2002, the High Court passed a shocking order noting that writ petitioners would have to
approach the High Court and approach the High Court to take action against the proposal against the state. Despite the fact that his applications for granting anticipatory bail were rejected by a plea order by the High Court, he was not arrested. The High Court therefore felt that the only course open to the defendant's
state in the circumstances was the reason for his arrest and that he was being prosecuted. Thereafter, the High Court passed the following order: Therefore, we direct the respondent State to arrest those accused and submit them before the court on or before 14.1.2002. Regarding their failure to do so, we will be
compelled to call the Police Commissioners, Nagpur, Pune and Mumbai to appear in this court and explain why they are not able to lead to the arrest of these individuals. Only because the accused are government employees/officers, if they have committed an offence, they have no immunity from arrest. This is expected
to make the state hardworking Such criminals without discrimination. The order may also be communicated to the Principal Secretary, Home Department, Government of Maharashtra and police commissioners of three cities who will be solely responsible for not complying with the orders of the court. The learned APP
has been directed to communicate commands by fax, wireless messages and even inform them on telephone so 16.1.2002, among other ways of service. Certified copy may be submitted to the APP. On 6.2.5 16.1-2002, the court passed another order which observed: Our concern is to see that the state should swiftly
terminate the investigation in the matter and file a charge sheet. We can again remind you of the status of the order passed by this Court rejecting the bail application before the arrest on 7-9-2001 and should show no laxity in the investigation. 6.2.6 Earlier on 11.1.2002, the court had rejected the application filed by the
respondents for amending the order of 7.9.2001. The three orders were challenged by the appellan in appeals to the Supreme Court. 6.2.7 While allowing appeals, the Hon'ble Supreme Court made the following observations: In the first place, the arrest of an accused is a part of the investigation and within the discretion
of the investigating officer. Section 41 of the Criminal Procedure Code provides for arrest by a police officer without order from the magistrate and without warrant. This section gives discretion to the police officer who can arrest any person in the conditions calculated in that section without a magistrate's order and even
without a warrant. It is open to them to arrest anyone who has been concerned with a cognizable offence or against whom a proper complaint has been made or received credible information, or that there is a reasonable suspicion of being so concerned. Obviously, he is not expected to take action in a mechanical
manner and arrest the accused in all cases as soon as the report is filed. After some investigation in appropriate cases, the investigating officer can make his mind whether it is necessary to arrest the accused person. The Court has no role to play at that stage. Since power is discretionary, a police officer is not always
obliged to arrest an accused, even if the charges against him are of committing a cognizable offence. Since an arrest is in the nature of an encroachment on the freedom of subject matter and affects the reputation and status of the citizen, power must be exercised carefully. It depends on the nature of the alleged offence
and on the type of persons accused of committing a cognizable offence, on other considerations. Obviously, power has to be used with caution and vigilance. .... .... .... The only fact that some appellans had bail applications There is no basis for instructing his immediate arrest rejected. In the nature of things, a person
can only take a court move on the apprehension that he can be arrested. The court may or may not grant anticipatory bail based on the facts and circumstances of the case and the material placed before the court. However, there may be cases where the application for grant of anticipatory bail may be rejected and
ultimately the said person should not be put on trial after investigation as no material is disclosed against him in the course of investigation. The High Court moved on to the assumption that since petitions for anticipatory bail were dismissed, no alternative was open for the state but to arrest those people. This notion, in
our minds, is wrong. A person whose plea for granting anticipatory bail has been dismissed may or may not be arrested by the investigating officer based on the facts and circumstances of the case, nature of the crime, background of the accused, facts revealed during the investigation and other relevant considerations.
6.2.8 Reference may also be made to the Supreme Court's comments. Sharma v Bipen Kumar Tiwari and Others (1970) 1 SCC 653 in which the court said: Although the Code of Criminal Procedure gives the police the unfettered power to investigate all cases where they suspect that a cognizable offence has been
committed, in appropriate cases a victim can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which the criminal procedure code gives the police the unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in
appropriate cases, a victim can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which the Criminal Procedure Code gives the police the unfettered power to investigate all cases where they suspect that a cognizable offence has been committed. , if the High
Court can be assured that the power of inquiry has been exercised by a police officer, the High Court can always issue a writ to prevent the police officer from abusing his legal powers. [PP 657-658 (para 11). 6.2.9 Thus it can be seen that the power of inquiry has been exercised by a police officer maliciously, the High
Court can always issue a writ to prevent the police officer from abusing his legal powers. A person is not necessarily supported only because his application for anticipatory bail has been rejected by the court. There should be sufficient grounds to arrest such a person. The power of arrest should not be exercised
mechanically. Instead, the nature of the alleged crime and antecedents of the accused person and other relevant material should be exercised, particularly with caution and with caution, taking into account the facts and circumstances of each case. If the arrest of the accused person is considered necessary on such
consideration, only then will it be made and not otherwise. This can be seen as inherent in the power of arrest. The need for arrest in a case can be considered an essential virtue of the legitimate practice of the power to arrest. In the absence of such a requirement, the exercise of the power of arrest and arrest will be
made as arbitrary and bad in the law. 6.2.10 The tever is high Clear nature. This is not through the exception of sub-section (1) of the section. It merely seeks to clarify whether there is any restriction on police power to arrest the applicant/petitioner whose advance application has either not been passed an interim order
or whose application for direction under sub-section (1) has been rejected. The avisor declares that there will be no sanctions and will be open to the police to arrest such a person if such an arrest is otherwise considered necessary in a case. However, the ally does not say that the police must arrest the person in that
case. Of course, the avisor does not engage on the police officer essentially to arrest the person whose application for anticipatory bail has been rejected. It only provides that in the contingencies mentioned therein, there will be no stopping for the person's arrest if the police otherwise consider his arrest necessary and
there are sufficient grounds to do so. The well-settled legal position is that in the absence of any protective judicial order, there will be no ferry to exercise the power of arrest by the police in accordance with the provisions of the Code. Since the law on this aspect of the matter is already very clear, it is not necessary to
insert this tevers into the section. Our view is that the general power of police arrest does not really need to be emphasised in terms of anticipatory bail as is done in the said avisor as inadvertently it can give an impression, how wrong it may be, that the police can make an arrest if the applicant is not granted anticipatory
bail. One should also note that the contingencies considered in the avisor are not only confined to rejecting the anticipatory bail application but have also been extended to pending cases of anticipatory bail applications, although no interim order has been placed on that. In such case, the anticipatory bail application
pending arrest will be aborted as no direction of release on bail can already be issued in case of arrest. In such a case, the arrest will also have the effect of reaching the court while the anticipatory bail application is pending. The purpose of section 438 will be defeated by allowing the arrest of the applicant while the
anticipatory bail application is pending. We expect the police to be a little more discreet in influencing arrests in such cases. Such cases should not be done as a matter of theoretical arrest unless it is absolutely necessary to do so in the interests of justice. Even while doing so, the judicial institution should show proper
decorum and respect before which the anticipatory bail application may be pending. The arrest of a person who rejects the application for anticipatory bail will also deprive him of his right High Court for relief against his arrest. Therefore, we recommend that sub-section (1) of section 438 should be dropped as there is no
warrant to replicate the general power of police arrest as otherwise obtained under the existing law. Note 6.3 on Section 438(1B): 6.3.1 As far as Section 438(1B) is concerned, section provides: (a) the presence of a person; (b) the demand for anticipatory bail (c) would be mandatory; (d) posting at the time of final hearing
of the application and for final order by the court; (e) if on the application given to it by the Public Prosecutor; (f) The Court considers such presence necessary in the interest of justice. 6.3.2 It can thus be observed that the presence of petitioners is not necessary in all cases of final hearing of anticipatory bail applications.
It is only in cases where an application has been filed by a public prosecutor for the presence of the petitioner and the court considers the presence of such a person as necessary in the interest of justice. The court can reach after hearing both sides on such a conclusion. The petitioner will thus have the opportunity to
present his side of the case opposing the application filed by the public prosecutor. Where no such application has been filed by the public prosecutor, the applicant may not be required to attend the final hearing of his application for anticipatory bail. 6.3.3 Under the existing provision, the applicant is not required to
appear in court individually while applying for anticipatory bail. There is no obligation on anyone against whom the police committed a non-bailable offence, having had to appear before the court to be released on bail in anticipation of his arrest. If no such duty is imposed on him to surrender and go for bail, it is not the
reason why he should be denied the right to transfer for anticipatory bail as soon as the offence is registered against him. The right to transfer for anticipatory bail is available to a petitioner until he is actually arrested on the basis of charge (see Chandramohan v State of Kerala, 1977 KLT 791). 6.3.4 Once the arrest is
made, the provisions relating to anticipatory bail cease to be applicable. Even the appeal against granting anticipatory bail becomes infructuous. In the state of Assam, Dr. Brozen Goga and others, air 1998 SC 143, had challenged the order granting anticipatory bail to the defendant No. 1 by a single judge of the Bombay
High Court. Despite the said order, the Assam police arrested the defendant No. 1 and took him into custody. When the petition was moved for hearing, the Supreme Court refused to deal with the parties' related disputes as the appeal on the arrest of the defendant No. 1 was defeated. This Given that it was appropriate
for defendant No. 1 to be transferred to the Court of The Forum if he wanted to raise the issue of violation of the directive in the imputed order. 6.3.5 Hajilsher V. State of Rajasthan, (1976) CRI. LJ 1658 (Raj) It was assumed that the surrender of the accused cannot be insisted upon in case of application for anticipatory
bail. In this case, the petitioner has been asked to take up section 438 CR P. Reached the High Court directly under C. The High Court expressed the view that the lower court should usually be transferred first, although in exceptional cases or special circumstances, the High Court may entertain and decide the
application for bail under Section 438. The petitioner's learned lawyer then indicated that the sessions court may insist on surrendering the accused before considering the application under section 438. In response, the learned single judge said, I see no basis for such apprehension. The law is clear that section 438
CR.P. Under C, whenever a person has reason to believe that he can be arrested on charges of committing a non-bailable offence, he can apply for anticipatory bail. If the surrender of the accused is insisted upon, section 438 CR for grant of anticipatory bail. The purpose of C will be defeated. It should hardly be pointed
out that Section 438 was provided for in the completion of cases where false and unfounded criminal charges can be brought against innocent persons for political or other external considerations and that they can be harassed and humiliated. In view of the intention of the legislature in the section, I consider if the
application is section 438, CRP. If C belongs, the surrender of the accused cannot be emphasized. 6.3.6 The objections of lawyers on the new sub-section (1B) are two-fold – firstly that the personal presence of the applicant in the court at the time of the final hearing of his application shall enable the police to arrest him
in case the court rejects his application, and secondly, in such a situation, the applicant shall be able to arrest him in case of rejection of his application by section 438 CR.P.P.P. Under C, your statutory right to transfer to the High Court shall be deprived. It vests powers in the Court of Session as well as the High Court.
There is some substance in the say of lawyers. The status available under the new sub-section (1B) is certainly less advantageous than what is currently achieved under the existing Section 438. However, it is more a matter of legislative policy than what the law should be. Under the law, the right to transfer the Sessions
Court or the High Court one after the other is given under the Statute and can be amended away or appropriately by amending the law. Even under existing If a person chooses to be transferred first by the High Court, he shall not have the effective right to grant equal relief at the hands of the Sessions Court as such
relief by the lower court can be seen as an act of judicial impropriety when the same relief on the same facts and material has been denied by the High Court. In principle, a person can transfer the sessions court or the high court on his option and not necessarily in any order. For this aspect, we can deal with more detail
a little later. But suffice to say, the new subsection (1B) is not open to any objections due to a lack of legislative capacity. As far as price opinion is concerned whether the law should be provided for in the new sub-section (1B), this is a different matter. 6.3.7 But there may be another serious objection to the new sub-
section (1B) which lies in the nature of anticipatory bail. As has been said before, anticipatory bail is in anticipation of arrest. Once arrested, it is not easy to take advantage of anticipatory bail. 6.3.8 Section 438 is known as anticipatory bail, in fact, before arrest is bail. The legislature has granted or granted it the right to a
citizen of this country that if he anticipates his arrest in connection with a non-bailable offence, he may apply to the Sessions Court or the High Court for granting prior arrest bail and the court may give a protective order in favour of such person. While giving such orders, the court may have ordered Section 438(2), CR.P.
C Section 439, CR.P. Certain conditions calculated under C may relate to the powers of the Sessions Court and the High Court in cases where the accused has already been taken into custody. Section 439, CRP. Any order passed under C shall be ordered after arrest, it directs a competent court to release the accused
on his personal bond and/or bailable bond or on complying with certain conditions. Under Section 439, 63.9 CR.P. C Section 439, CRP. Keeping in view the language employed under C, the application will be kept only when the accused is in custody. 6.3.10 Naresh Kumar Yadav in the v. Ravindra Kumar and others,
2007 (12) Scale 531, Dr. Ajit Pasayat J very appropriately reflected the difference between anticipatory bail and regular bail under section 438 under section 439 of the Code of Criminal Procedure, 1973: Section 438 of the Code is generally referred to as anticipatory bail. This expression is neither used in the section nor
in its marginal note by the Law Commission in its 41s report. But the expression of 'anticipatory bail' is a convenient way to make it possible to apply for bail in anticipation of arrest. Any bail order can be effective from the time of arrest of the accused. Wharton's law dictionary explains 'bail' as 'freedom to set on one'
Arrested or imprisoned, being taken for her appearance on security. Thus bail is basically the release sparingly, and more specifically police custody. The difference between a simple order of bail and an order under Section 438 of the Code is that while granted after prior arrest, and therefore means release from police
custody, the latter is granted in anticipation of arrest and is therefore effective at the moment of arrest. (See: Gur Baksh Singh v Punjab State 1980 (2) SCC 565). Section 46 (1) of the Code, which is due to be made arrests, provides that the arrest of a police officer or other person in making an arrest shall actually touch
or limit the body of the person unless presented in custody by word or action. The order under section 438 of the Code is intended to provide conditional immunity from section 46 (1) of the Code or the touch envisaged by any imprisonment. In Balchand Jain V, the court of Madhya Pradesh (air 1977 SC 366) has termed
the expression of ' anticipatory bail ' as false. It is well known that bail is the simple expression of arrest, that the court first thinks to make an order that a person in the event of an arrest will be released on bail. Unless the accused is arrested, there is no question of release on bail, and therefore, it is only on arrest that the
order becomes operative. The usable power under section 438 is somewhat extraordinary and it is only in exceptional cases where it appears that a person may be falsely implicated or where there are proper grounds for possessing a person accused of an offence, otherwise his freedom is unlikely to be misused, power
is to be exercised under section 438. The power to be of an important nature it is entrusted only to the high echelons of judicial fora i.e. sessions court or high court. This is a power exercise in case of advance charge of non-bailable offence. The object sought to be obtained by section 438 of the Code is that the moment
a person is arrested, if he has already obtained an order from the Sessions Court or the High Court, he will be released on bail immediately without being sent to jail. Sections 438 and 439 operate in different areas. From the bare reading of the provisions, it is clear that a person must be detained for applying in the
context of Section 439 of the Code. Section 438 of the Code relates to the direction of granting bail to a person prone to arrest. 6.3.11 Section 438, CRP. C clearly says that when a person has reason to believe that he can be arrested on charges of committing a non-bailable offence, he can apply to the High Court or the
Court of Sessions for a direction under this section, and in the event of such arrest, he may be able to apply to the High Court or the Court of Sessions. Be released on bail. Section 438, CRP. C provides a protective order in favor of the accused who anticipates his arrest; While Section 439, CR.P. . C applies to the
accused in custody. The term 'custodial' for the purposes of section 439 has been interpreted by the Supreme Court and the High Court. {Akhilesh Jindani (Jain) and another v state of Chhattisgarh, 2002 CRI. LJ 1660 (Chhattisgarh)]. 6.3.12 Section 439 Cr.P. Explaining the expression in custody within the meaning of C,
Krishna Air J Niranjan Singh and another v Prabhakar Rajaram Kharote (1980) speaking for the bench in 2 SCC 559 said: When there is a person in custody, section 439 Cr.P.p.. Within the meaning of C? When he is under pressure either because he is held by the investigative agency or other police or associated
authority or is under the control of the court has been remanded by judicial order, or presented himself to his order by the court's jurisdiction and by physical appearance. To come to a realistic conclusion requires no lectureal dexterity nor parable sufficiency that he who is in the control of the court or in the physical grip of
an officer with coercive force is in custody for the purpose of Section 439. The term is of elastic semantics but its basic meaning is that the law has taken control of the individual. Equivocal quibbling and hiding have repeatedly heard in court that police have taken a man into informal custody but have not arrested him,
detained him for questioning, but have not taken him into formal custody and other terminology such as dubieties are unjustified theft of the straightforwardity of the law. We do not need to look at this shady aspect here because we are satisfied that the accused presented physically to the Sessions Judge and thus the
jurisdiction to grant bail arose. The detention, in reference to Section 439, (we are not, it is mentioned, dealing with anticipatory bail under Section 438) is accompanied by physical control or submission of court jurisdiction and orders with the minimum physical presence of the accused in court. He cannot be in custody
only when the police arrest him, appear before the magistrate and receive judicial or other custodial remand. He can be called into judicial custody when he surrenders before the court and presents his instructions. In the current case, police officers applied for bail before the magistrate, who refused bail and yet the
accused received a stay order to be transferred to the sessions court without surrendering before the magistrate. The magistrate's direction was completely irregular and the accused persons may have been given section 439 CR P. Be able to circumvent the principle of C. We may have seriously considered such a
course, indifferent to the mandatory provisions, by the subordinate magistrate, but by the fact that in the present case The accused surrendered before the sessions court and made it for the same. Thus, the Sessions Court acquired jurisdiction to consider the bail application. This could have been denied bail and the
accused was remanded to custody, but exercised his jurisdiction in favour of granting bail due to circumstances and reasons mentioned by him. The High Court added the conditions under which bail was to be granted and it was mentioned that the accused had submitted it to court custody. We therefore do not proceed
to disturb the order on this basis. 6.3.13 V Deepak Mahajan and another (1994) 3SCC 440 in the Enforcement Directorate, the Supreme Court made the following observations: The word arrest is taken from the French word 'arator' which means to stop or stay and symbolize the restraint of the individual. Dictionary, the
word arrest is given in various dictionaries which the said expression is used on the basis of circumstances. One of us, (S Ratnavel Pandia,, J, as he was then a Judge of the Madras High Court) Roshan BV and other V Joint Secretary, Government of Tamil Nadu and other Joint Secretaries, Government of Tamil Nadu
and others in 1984 (CRI). LJ 134: (1984) 15 ELT 289: 1983 MLW (CRI) 289 (NUTS)) had the opportunity to go into the gamut of the meaning of the word 'arrest' in terms of various textbooks and dictionaries, the law of the new encyclopedia Britannica, Halsbury, L. B Curzon, Black Law Dictionary and History of Law by
Words and Phrases. Based on the meaning given in those textbooks and dictionaries, it has been held that: [t] he means the word 'arrest' when used in its ordinary and natural sense, fear or restraint or lack of one's personal freedom. The question of whether the person's arrest is ongoing does not depend on the validity
of the arrest, but depends on whether he has been denied his personal freedom of going wherever he wants. When used in the legal sense in the process involving criminal offences, an arrest is aimed at detaining another person under authority empowered by law, answering a criminal charge or holding or detaining him
to prevent the Commission of criminal offences. The essential elements for constituting an arrest in the above sense are that there should be an intention to make an arrest under the authority, with which there should be the seizure or detention of a person in the manner going for the law, which is so understood by the
person arrested. Chapter V of the Code contains various sections titled Arrest of persons, out of which sections 41, 42, 43 and 44 give various authorities and even private persons the right to arrest a person in the event given. The code thus empowers arrest not only to a police officer and magistrate but also to situations
granted in certain circumstances or to private individuals. Also, when an accused person appears before the magistrate Surrenders The magistrate has the right to detain the accused person and deal with him in accordance with the law. There is no need to stress that the arrest of a person is a condition for him to be
taken into judicial custody. To put it separately, the person is followed to judicial custody after the arrest of the person concerned on appearance or surrender by the magistrate. At this stage it would be appropriate to note that every arrest has custody but not vice versa and both custody and arrest are not synonymous
words. However 'detention' may amount to an arrest in certain circumstances, but not under all circumstantial-tances. If these two words are interpreted as synonymous, it is nothing but an over-legal interpretation which, if accepted and adopted in all circumstances, will create a startling anomaly resulting in serious
consequences through Roshan Beevi. 6.3.14 V. Mobrach Ali and others in the state of Assam, 1982 CRI. LJ 1816, a bench said that when an accused voluntarily surrendered before the court and the court granted him bail, the bail grant would be under section 437 and under the jurisdiction of the magistrate. Such action
cannot be called one under section 438. Explaining Section 437 of the Code of Criminal Procedure, 1973, Lakhari J, speaking for the Bench, made the following observations: Section provides the competent authority for granting bail other than a court other than the High Court and the Sessions Court. It specifies the
nature of the offence i.e. non-bailable offences. The section also prescribes the circumstances when bail can be granted, i.e. (1) when the accused has been arrested or detained without warrant by an officer in charge of a police station. Production or court attendance is non-essential in such circumstances; (2) When the
accused appears, or (3) he is brought before a court other than the High Court or the Sessions Court, he may be extended on bail by the court. Therefore, the conditions for entertaining the application for bail are precedent as to whether the person is an accused or the Commission's suspicion of any offence. If the
learned magistrate finds out that he is charged with an offence or is suspected of a non-bailable offence, the second condition comes into play, namely, whether under arrest or detention without warrant by the office charge of the police station. If he is arrested or detained, the custody must be by the officer in charge of
the police station and without a warrant. Further, any police officer or authority competent to arrest an accused or a legally competent person for arresting an accused may be brought before the court. Therefore, in the first case, the accused is not required to produce physically before the court, while in the case of
bringing the accused. The court requires the production of its corpus. This muscle of the accused before a court does not depend on the accused's own choice. It is a third party act. Meanwhile, there is another class or type of person who can be extended on bail under section 437, that is, the person who is accused or
suspected of a non-bailable offence appears voluntarily before the court, what he should do on attendance, he has to apply before the court seeking bail. The sanction of bail or his refusal is absolutely within the discretion of the court. His appearance in court has the potential for the court to grant bail with or
unconditionally with a condition. No sooner does he appear before the court, the accused or suspect surrender to court custody. The act of custodial muscle or surrender enables the accused to seek bail. Such an accused can be extended on bail by a court order or if the court does not grant bail, the accused can be sent
directly to jail. Thus, whenever an accused voluntarily appears before the court and surrenders before the court, he remains in court custody until he is granted bail. The question of granting bail to such an accused cannot arise unless he is in the custody of the court. When an accused appears and seeks bail, he should
surrender to the court and remain in court custody. No such accused or suspect can seek bail under section 437, if he appears but does not appear in court custody. As explained by the Supreme Court in Niranjan Singh V, the word 'custody' means physical control or at least physical presence of the accused in the court,
as is the jurisdiction and order of the court to be submitted. Prabhakar, AIR 1980 SC 785: (1980 CRI.LJ 426). His lordship has clearly stated: he can be called into judicial custody when he surrenders before the court and presents it at his direction. Therefore, the word 'manifested in section 437' means voluntary presence
before the court without the intervention of any agency and submission of its directions as well as surrender before the court. These are contained in section 437 of the code. Thus, we believe that when an accused appears and remains under the physical control of the court or is physically present and presented before
the jurisdiction and orders of the court, the magistrate is given the right to grant bail to such accused or suspect, if he is so entitled. In the immediate case, the accused appeared and surrendered to the jurisdiction of the court, praying for an increase on bail. The magistrate was able to give bail. However, the learned
judge believes that the exercise of such power is linked to the exclusive power of the High Court or the Sessions Court conferred under Section 438 of the Code. Its scope The scope of section 438 is quite different and different. The direction to grant bail to a person who is suspected of arrest can be in favour of a person
who is suspected of arrest. No application under section 438 can be made by a person detained or arrested by the police. The applicant does not need to appear in court nor should be brought to court. He cannot be granted bail immediately by the court. He can get directions from the court that he can be extended on
bail by the police in case of his arrest. Therefore, the specific features are that in section 438 - (i) the applicant does not need to be an accused person, (ii) does not require him to be brought before the court nor is his personal presence in court a condition precedent; He may apply personally without appearing in court;
(iii) the applicant submits it to the custody of the court; (iv) In case of his arrest, it is necessary to apply for anticipatory bail. Therefore, no application can be placed under section 438 on arrest; The court cannot direct that he be released on bail immediately. This can only give a direction that he should be released on bail
in case of his arrest. The right to grant bail is the officer in charge of the police station, if the applicant wants to arrest without warrant, on such charges. The magistrate cannot use this extraordinary power to make direction for granting bail directly or indirectly. It can be used only by the High Court or the Sessions Court. In
the case, the accused did not seek bail while expressing apprehension of the arrest. The accused persons surrendered before the court and prayed for bail. Therefore, section 438 did not have any application in the present case. Under these circumstances, we hold that the learned Chief Judicial Magistrate did not
exercise powers and functions under Section 438 of the Code. The exercise of powers and functions was limited within the ambit of section 437 of the Code. Accordingly, we answer the question that the learned Chief Judicial Magistrate acted under Section 437 of the Code and did not do any power and function under
section 438. The order has been amended by the learned sessions judge. 6.3.15 As stated earlier, there was no specific provision in the Code of Criminal Procedure in accordance with the present section 438. Under the old code, there were huge differences between the various high courts on the question of whether
courts have the inherent power to pass a bail order in anticipation of arrest, the primacy to see if it does not have such power. It would be expedient to mention the underlying reasons in this view. For this purpose, the following comments made by the Madhya Pradesh High Court in the case of the State of Madhya
Pradesh: V. Narayana Prasad Jaiswal, AIR 1963 Madhya Pradesh 276 Will be of relevance: Dictionary Meaning The word ' bail ' is to free or free a person on the security being given for his presence. In Wharton's Law Dictionary (14th Edn.) the term bail is defined as follows: Freedom is set on to arrest or imprison a
person, being taken for his presence on a day at security and something at a place, which is called security bail, because arrest or imprisonment is given in the hands of the party who bind themselves or become bail for his presence because of him when necessary. , in order that he can be safely protected from prison,
which they have, if they fear his escape, etc. legal power to give him. In Tomlin's Law Dictionary, it is stated that the term bail in our common law is used to imprison an arrest or any action on any action or to imprison on any action, either civil or criminal, taken for his presence in a day and some place. This is because of
why it is called 'bail', because it means that the party is given into the hands of those who tie themselves to their forthcoming, in order to keep safe from prison or for safety. The term is similarly defined in Earl Jovit's 'Dictionary of English Law' (1959 EDN). It is also similarly defined in Stroud's judicial dictionary and other
legal dictionaries. Thus, bail means releasing a person from legal custody. This meaning of the word has been adhered to in the code. References to sections 57, 59, 62, 63, 64, 169, 170, 496 and 497 the power to release the police on bail and section 76, 86, 91, 186, 217, 426, 427, 432, 438, 496 and 497 for grant of
bail and for the forms and bail bonds prescribed for bailable warrants, it becomes very clear that where a person is granted bail, he is left with restraint. If granting bail to a person is that he is in police or court custody, or if not already in such custody, such custody needs to be surrendered, then it is untrue to speak of
anyone who has no such restraint, being granted bail. 6.3-16 Anticipatory bail was not allowed due to the use of the word manifested in sections 496 and 497, the court did not find the party. The court believed that only voluntary attendance, without anything else, could give rise to the court's power to release the person
on bail. This is because the person who is independent and does not need to surrender to any custody under any order of arrest issued against him is not in any custody from which to be released. 6.3.17 A single judge of the Kerala High Court also celebrated varki's delhii Mathieuyil Pulithanam V. The State of Kerala,
AIR 1967, Kerala 189 that bail means release of a person from legal custody and granting bail to a person, it is assumed that he is inside. Custody of police or court. 6.3.18 B Narayanappa and others V. The State of Karnataka, 1982 Cri.L.J.1334, it was assumed that when the accused appeared and submitted to the
jurisdiction of the court, he was in judicial custody and the Magistrate could not dismiss his bail plea under section 436 of the Code of Criminal Procedure, 1973 on the ground that the applicants were neither arrested by the police nor summoned in response to any court procedure. The court said: There is nothing in the
section either to exclude voluntary attendance or to suggest that the presence of the accused should be in obedience to a procedure issued by the court. There is no doubt that other manifestations used in this section are brought before the court in the form of prior arrest and reference to such person being brought
before the court by the police or otherwise arrested by the police due to the incompetence of such person so that he can be arrested and detained by the officer in charge of the police station. The term 'presence' as used in the section for me, it seems, involves fairly extensive voluntary presence. 6.3.19 Niranjan Singh
and another V Prabhakar Rajaram Khadote, referring to the Supreme Court judgement in AIR 1980 SC 785, the Karnataka High Court further said: Even in the present case, the accused had appeared under the jurisdiction of the court and asked for bail. As formulated in the above judgement, if the surrender and
physical presence of the accused along with the submission of jurisdiction and orders of the court is judicial custody, the accused-petitioner had sought bail by appearing before the court, he was subject to restraint and had submitted it under the jurisdiction of the court. The Magistrate was not correct in saying that he is
not in a position to understand the meaning of the word appearing within the meaning of the expression custody used in section 439 as section 436 CRP. C was discussed in the said decision with the meaning. When only physical attendance before the court with a request to grant bail is in custody, it exceeds
attendance. 6.3.20 Section 88, 1973 of the Code of Criminal Procedure provides for the power to take bonds for attendance. Accordingly, when any person has the right to issue a summons or warrant for the presence or arrest of the presiding officer in any court, present in such court, such officer may be required to
execute a bond for such court appearance, or for other court appearance, for which the case may be referred for trial. The presence of a person should be of his own volition as an independent agent and not under the compulsion of a court order. When the accused was told unnecessarily, this section was implemented
K. Pandrathan V. Raju and another, in response to the court summons in the 1998 CRI case, appeared along with their counsel. LJ 1128. 6.3.21 Section 88 corresponds to section 91 of the old code. While dealing with Section 91 of the Code of Criminal Procedure, 1898, the Supreme Court made the following
observations in the case of Madhu Limaya and others V. Ved Murthy and others (AIR 1971 SC 2481), i.e., section 91 actually applies to a person who is present in the court and is free as he talks of being forced to appear before the court on any other day. This shows that the person should be a free agent whether to
appear or not. If the person is already under arrest and is in custody, as were the petitioners, his presence depended not on his own volition but on the will of the person who had his custody.... It is not necessary to take a bond with a person already in detention and not to release him. The danger arises when the man is
liberated and not when he is in custody. It is to stop his acting that the bond should be taken or kept in custody till he gives the bond. Section 344 deals with a simple adjournment of a case and allows a person to be bailed out or admitted to court so that he can remand him when he is in custody. 6.3.22 It would be
expedient to retrieve the essential ingredients of the new subsection (1B) even at the expense of repetition. Firstly, the presence of the applicant seeking advance will be mandatory in the context of sub-section (1B); Secondly, such an appearance would be so mandatory at the time of the final hearing of its application
and the passing of the final order by the court; Thirdly, such presence is essentially granted on the application made to the court by a public prosecutor praying for such a presence in the interests of justice; And finally, such an appearance will inevitably be emphasised if the Court considers the application made by the
public prosecutor to make such an appearance necessary in the interests of justice. In the above circumstances, there is clear restraint on the applicant's independence and independence and the compulsory presence envisaged by the sub-clause subjecting the applicant to the court's ruling. Such mandatory attendance
is apparently not compatible with the applicant's right to direct the court for anticipatory bail because he has already been placed in moderation and he is most likely to be transferred from court custody to police/police. Such an incident does not occur in legislative thinking during the use of anticipatory bail. We are
therefore willing to consider that sub-section (1B) nullifies and thwarts the right to anticipatory bail. 6.3.23 From above, it can be seen that if a person appears in the court on his own volition, the court may be a court. Action under section 88 of the Code to compel him to be present on a future date. However, if a person
surrenders himself to the court and subjects himself to the directions of the court, Section 88 shall not apply in such a case and the appropriate course shall be to either remand him to judicial custody or accept him for bail. Where a person seeks anticipatory bail, the court cannot direct his personal presence. However, it
would be open to the court to either reject his application or grant him anticipatory bail. Where a person appears before the court in compliance with any court order and surrenders himself for court instructions or control, he or she may be granted regular bail as he is already in moderation. In such a case, provisions
relating to anticipatory bail may not be attracted. In view of the above, the insertion of the new sub-section (1B) in section 438 is apparently not in conformity with the nature and scheme of anticipatory bail. The essential nature of the attendance envisaged in this new sub-section nullifies the application for anticipatory bail
as the applicant has already been held in moderation and is in court custody. 6.324 We are conscious of the fact that this aspect of the matter has inadvertently escaped the attention of the Commission at the time of submission of the 154th Report. We are also aware of the fact that a similar provision has been inserted
in the Code in its application to the State of Maharashtra by the State Amendment made in 1993. If the compulsory presence of the applicant in compliance with the court order has received judicial consideration in any case, it has not been brought to our notice. We have noted the case of Maharishi State and another V
Mohammad. Sajid Hussain Mohammad. S. Hussain etc. 207 (12) Scale 63 Sectorio CR.P. Under C, as amended by the Maharishi State by Act No. 24 of 1973. But the matter was dealt with in the context of four factors mentioned in sub-section (1) of section 438 which were relevant to consider the application of grant of
anticipatory bail. The question of the applicant's compulsory presence was not for the trial of the court. Nevertheless, we believe that the compulsory presence of an applicant seeking anticipatory bail in compliance with a court order to this effect would be contrary to the right to anticipatory bail. We are therefore
considering the idea that sub-section (1b) should be removed from this clause. Note 6.4 on Concurrent Jurisdiction: 6.4.1 One of the objections raised against the amended section has been that if the applicant seeking anticipatory bail is required to compulsorily appear in the court in the context of the new sub-section
(1B), he is most likely to be arrested from the court premises in case his bail is dismissed. Such arrest of the applicant shall deprive him of his right otherwise available To move the alternative platform provided in section 438 of the Code. Under section 438, the concurrent jurisdiction of the Sessions Court and the High
Court has created a lot of litigation. The code does not lay down any specific order in which two alternative forums may be approached. It is left to the applicant's option to transfer either to the Sessions Court or the High Court for anticipatory bail in one or reverse order after another. There are differences between the
various high courts on whether the Sessions Court should be approached in the first original or the High Court can be approached directly to grant anticipatory bail without resorting to the first sessions court. It may be mentioned that both the Sessions Court and the High Court had exercised the original jurisdiction under
section 438. However, when a petition is filed in the High Court after the sessions court rejects the anticipatory bail application, the plea for anticipatory bail in the High Court is required to be accompanied by a copy of the sessions court order, thereby collecting the reason for rejecting the anticipatory bail application. In
such a case, the High Court essentially exercises amendive powers on the order of the Court of First Instance. That means the sessions court, however, intends to exercise the original jurisdiction under section 438. On the other hand, in some cases it has been maintained that where the applicant went to the High Court
for anticipatory bail which was rejected, the Sessions Court should not grant anticipatory bail to the applicant on the same facts and material otherwise it would be an act of judicial impropriety. There are also cases where a similar approach regarding rejection of application for anticipatory bail by the Sessions Court has
been taken in reverse order. Accordingly, in some cases it has been maintained that if the application for anticipatory bail is rejected by the Sessions Court, a similar application on the same fact will not be in the High Court unless there are some new material or facts. There are also cases where the opposite approach
has been adopted under which no such fatwas are accepted on the powers of the High Court. 6.4.2 It would be useful to mention some of these cases for better appreciation. 6.4.3 Omkar Nath Agarwal and other V. States 1976 CRI. The full bench of the Allahabad High Court, LJ 1142 said that section 438 clearly
considers two fora to apply for anticipatory bail, namely, the Sessions Court and the High Court. Both jurisdictions are concurrent and it is left to the person to choose either of the two.. । The full read provision does not make prima facie any bar that he should apply to the Sessions Court before coming to the High Court
to seek his redressal. Thus, the bail application under section 438 can be submitted to the High Court without To take recourse to the court of session. 6.4.4 Y. Chandersekhara Rao v. YV Kamala Kumari, 1993 at CRI. A bench of the Andhra Pradesh High Court, LJ 3508 said that an application for anticipatory bail was
made in the High Court, without the party coming to the sessions court in the first time. The court did not find any justification for returning the documents of the registry on the ground that in the first time the applications were not placed in the High Court under section 438. The court said: This provision clearly means that
not only concurrent power is granted to the High Court and the Court of Sessions but the affected person is given the option to transfer either of them to one. If the party which intends to move an application under Section 438 seems to be moving to the Court of Session and is more convenient, it may do so. But if he
thinks that high court contact is more convenient and less time-consuming, he will not be done before he does so. Situations may arise when it may be more efficacious for a person to approach the High Court under section 438. Residents of Srikakulam or Visakhapatnam, if there is an apprehension of arrest if they are in
Hyderabad, it may seem more convenient to transfer the High Court under Section 438 for any loss at any time without any time instead of transferring the Sessions Court of your native district. It is not possible to have a comprehensive spec to what precise reasons are motivated by individuals to invoke the jurisdiction of
the High Court in the first time under section 438. ... When the procedure covered under section 438 in explicit language empowers both the High Court and the Sessions Court to grant anticipatory bail, depriving the Right to Transfer the High Court in the first, is clearly a violation of the fundamental right guaranteed
under Article 21 of the Constitution of India. 6.4.5 Devidas Raghu In Nayak V. State, 1989 CRI. The single judge of the Bombay High Court, LJ 252, said that in view of the concurrent jurisdiction given to the High Court and the Sessions Court, the fact that the Sessions Court has refused bail under section 439 does not
work as a one-time for the High Court to entertain a similar application under section 439 on the same fact. However, if the choice was made by the party to take the high court earlier and the High Court has rejected the application, the decorum and hierarchy of courts require that if the sessions court is presented with a
similar application on the facts, the said application may be rejected. 6.4.6 Jagannath V. State of Maharashtra, 1981 CRI. LJ 1808, Bombay High Court said that the sessions court and the High Court have concurrent jurisdiction in the matter of granting anticipatory bail. Referring to Section 397(3) of the new Code
provides that if a court was moved Its vetting jurisdiction, other jurisdictions will not entertain a similar application, the court said, did not prevent parliament from imposing a similar bar in bail-related provisions — either before arrest or after arrest — and indicates that concurrent jurisdiction was exercised by the Sessions
Court and the High Court in the case of granting bail. 6.4.7 In Amiya Kumar V. West Bengal State, 1979 CRI. A bench of the Calcutta High Court, LJ 288, said that section 438 has given the option to select a forum to file a petition for anticipatory bail-to select either the High Court or the Sessions Court, though both the
courts have been made a platform for the applicant's approach. This section empowers the party with restricted options.... Two courts have the right to grant bail under section 438, that is, the High Court and the Sessions Court, but the petitioner can choose one of the two courts and apply to the court of his choice. We
cannot hold that if the petitioner approaches the Court of Sessions for relief under section 438 and if his prayer is rejected, he shall be entitled to approach the High Court for the same relief on the same grounds under that section. 6.4.8 However, a three-member bench of the same High Court did not agree with the idea
in Dipendu Nayak and others V. The State of West Bengal, 1989 (1) Crime 435 (Calcutta) in which it was assumed that section 438 CRP. The bail application under C can be transferred to the High Court as the applicant did not succeed before the Sessions Court. 6.4.9 Similar views were expressed by the Delhi High
Court in Arun Madan V. State, 1993 (1) Crime 599: 1993 CRI. LJ 1493, wherein it was assumed that after unsuccessfully proceeding in the sessions court for anticipatory bail under section 438 of the Code of Criminal Procedure, a person can again approach the High Court for the same purpose under the same section.
6.4.10 In Mohan Lal and others etc., Air 1980 Himachal Pradesh 36, a full bench of the High Court said that a person can apply for anticipatory bail directly to the High Court without first enforcing the jurisdiction of the Sessions Judge. 6.4.11 In Kashmir.C. Ayya V. State of Karnataka, 1985 CRI. LJ 214, it was provided
that: since both the courts, the sessions court and the High Court had criminal p. There are concurrent powers in the matter of granting anticipatory bail under section 438 of C, the person seeking anticipatory bail under section 438 should approach the sessions court in the first time as it will serve the ends of justice. ,
public interest, and justice administration. There may be cases of special reasons or special circumstances which may require the person concerned to approach the High Court at first. If contacted for the reasons he explained In the first time the court is found genuine, such an application can be considered by the High
Court. 6.4.12 Mrs. Manisha Neema V. The State of Madhya Pradesh, 2003 (2) Offences 402, the High Court opined that the applicant should have filed the application before the Sessions Court for the first time and thereafter, if it was rejected, he could have approached the High Court. In arriving at the conclusion, the
Madhya Pradesh High Court expressed confidence in an earlier judgement in the case of Daini alias Raju V. State MP, 1989 JLJ 232 comprising Hon'ble Justice R. C Lahoti (later Supreme Court judge and Hon'ble Chief Justice of India) has said that though CRP. C has concurrent jurisdiction under sections 438 and 439
of C, but the application must first be filed before the Court of Session and upon failure before that court, the application should be filed before the High Court along with the first order of the Sessions Court and also mention all relevant facts. His dominance at Paras 19, 20 and 21 has given detailed reasons for such an
event. For convenience, it is reproduced below:- 19. Section 439, CR.P.C. Under the jurisdiction of the High Court and the Sessions Court, the CR.P. Being concurrent, as a matter of behaviour, bail applicants are usually required to approach the Sessions Court in the first time and if the relief is denied, they approach the
High Court U/S 439. cr.p. C itself, not as a senior court sitting in appellate or vetting jurisdiction on the order of the Court of Session, but because the Superior Court can still exercise its jurisdiction independently, is unaffected by the outcome of the exercise by the Sessions Court because the latter is an inferior court,
which lies with concurrent jurisdiction. A similar prayer letter has been dismissed with the order of the Sessions Court on the plea seeking bail before the High Court. The idea is to provide the court better with an advantage of informing itself with the basis as the idea which prevailed with the Court of Session in taking the
idea which it did. In many cases it has come to my notice that the first order of the Sessions Court rejecting the plea for bail is a detailed order and when another application is repeated before the same court, the application is rejected in the latter order only saying that the first application was rejected on merits, the court
saw no reason to take a different approach in the matter. The latter order is not a detailed one. The subsequent order is filed before the High Court for completion of formality but the inevitable consequence is that the High Court is deprived of the opportunity to make itself aware of the reasons which formed the
foundation for rejection of the letter of prayer by the Sessions Court. The possibility that such a course is adopted is not ruled out Because the plea for bailable bail is not felt comfortable before the High Court in the presence of a detailed order of the sessions court. 20. The subjects of the system are to sum up: (i)
Shahzad Hassan Khan (Adpra) In view of the Supreme Court's decision, a subsequent application for bail in the same jurisdiction, must be placed before the same judge (as long as he is available) with whatever the result of the first application came; (ii) a subsequent application for bail should refer to all its prior or
pending efforts and the High Court as well as the Sessions Court as well as their fate should be made before the court; (iii) While presenting an application for bail before the High Court, the application should usually be accompanied by a Sessions Court order rejecting the first plea for bail and including the reasons,
unless it is dispensed; (iv) The bail plea requires the applicant to include details of all the facts and circumstances relevant in support of his prayer so that whatever is presented before the court is not in thin air, but it may be kept on record, though no format is prescribed for bail applications; If any statement is likely to be
favorable by the opposite party, the Party will do well to support its statement by affidavit or documents, according to the advice. 21. A question may be asked whether these requirements are only falling within the framework or procedural requirements, laying down rules of discipline can only be considered so necessary
to override the basic law of bullocks, denying the right or privilege for the failure to comply. Behind the requirements is a laudable objective, principle and policy. They have been projected by judicial knowledge established on judicial experience. The right results must be achieved by the right means. That is the rule of law.
If the person involved and society affected (as has been spoken of in Babusingh and others, they must be protected, if confusion in the form of bail jurisdiction is to be removed: if impartiality is to be maintained in the system of criminal justice, abuse of the process of law is to be avoided, and if unwanted behaviour/tactics
are to be stopped: these rules of discipline must be considered compulsory. Failure to see them can be disastrous for the purpose sought. 6.4.13 Chjju Ram Godara and Other V. In the State of Haryana, 19.78 crore LJ608 (Punjab and Haryana), it was stated that Section 438.C of crp gives concurrent powers to grant
anticipatory bail to both the High Court and the Sessions Court. Like other corresponding provisions in the Code, it is generally assumed that the Court of Session shall be approached for grant first unless sufficient case is made The said court has been excluded. 6.4.14 Hajilsher V. State of Rajasthan, 1976 CRI. LJ
1658, the High Court said that though the High Court has concurrent jurisdiction with the Sessions Court, bail can be granted under any of the above two sections. Sections 438 and 439, it is desirable that the simple practice should be that the lower court should first be produced in this case, although in exceptional
cases or special circumstances, the High Court section 438 or section 439, CR P. Can entertain and decide the application for bail under C. This is particularly important because any expression of opinion by the superior court is likely to prejudice, if not often, in cases somewhat and far between, trials in lower courts. On
proof of special circumstances, the High Court will certainly entertain an application under section 439 and decide on merits. But, for this reason, an accused person cannot claim as a case or right to decide such an application at first by the High Court. 6.4.15 Dharampal V State of Punjab, 2002 CRI. LJ 1621, which was
granted anticipatory bail by Sessions Judge Ropar, had made adverse remarks in view of the fact that he himself had refused anticipatory bail twice before and the High Court had also refused anticipatory bail and the Supreme Court also refused to intervene in the order to deny anticipatory bail. The High Court observed
that under these circumstances, the Sessions Judge, Ropar, has not done well and showed gross judicial indiscipline and impropriety while granting anticipatory bail in disregard of the orders of the High Court and the Supreme Court and their own orders. 6.4.16 Gandhi V. State of Andhra Pradesh, 1991 (3) Crime 796
(AP) It was assumed that section 438 CRP. The second bail application for anticipatory bail under C was not banned. However, if the second bail application did not reveal any changed circumstances since the rejection of the first application filed by the petitioner, it would be liable to be dismissed. 6.4.17
Rameshchandra Kashiram Vora V. The State of Gujarat, 1988 crore LJ 210, observed that it would be a concrete task of judicial discretion not to entertain every application for direct anticipatory bail by passing the Sessions Court. Usually, the sessions court is close to the accused and the anticipatory bail is easily
accessible and the remedy is the same and under the same section and there is no reason to believe that the sessions court shall not act in accordance with the law and pass a proper order. In a case, if an accused is unhappy, his further remedy for contacting the High Court is not prohibited and he shall make a
concrete application for anticipatory bail under section 438 or CR P. The amendment application under section 397 of C will benefit the reasons given to the High Court and the High Court. Court. It will only be in exceptional cases or special circumstances that the High Court can directly entertain such an application and
that these exceptional and special circumstances must indeed be exceptional and there must be legitimate and concrete reasons for passing the Court of Session and approaching the High Court. When the accused has simple and equally efficacious measures available in the Court of Session, special and overwhelming
reasons will require the High Court to make a special and extraordinary case in order to persuade them to entertain such an application directly. 6.4.18 In the state of Maharashtra and another V Mohammad Sajid Hussain etc., 2007 (12) Scale 63, the defendants filed an application for anticipatory bail before the Sessions
Judge, which was dismissed. The defendants petitioned the high court and their application for anticipatory bail was allowed while allowing the appeal filed by the state, the apex court said, adding that it is now the law's well-settled principle that while granting anticipatory bail, the court should record its causes. The
Supreme Court noted that the High Court had refused to grant regular bail to the accused against whom the charge sheet was submitted. The learned sessions judge also did not grant bail to some of the accused. The apex court then said that if, on the same material, prayers for regular bail have been rejected, we fail to
see any reason why and on what basis the defendants can be extended on bail. The Supreme Court therefore concluded that the High Court should not have granted anticipatory bail to the defendants and should have been set aside accordingly. 6.4.19 There are a lot of cases on the above aspects. Suff <3> is to say
that this section has created a lot of litigation that could have been avoided. There are other provisions in the Code which have concurrent jurisdiction in the High Court and the Sessions Court. For example, both the High Court and the Sessions Court have concurrent jurisdiction to amend under section 397. However,
under section 397, if a person approaches any of these courts, he cannot re-incite the matter through an amendment to another court. While there appears to be a justified reason for granting concurrent jurisdiction over the High Court and the Court of Sessions, the person seeking anticipatory bail should have been
given an option along the lines of section 397(3). Accordingly, if he approaches one of these two courts, he should not be allowed the same relief again through a concrete application under section 438 in the other court. It may be noted that the Karnataka High Court has asked for a case against the government. C Ayya
and Adi had made this remark. State of Karnataka, 1985 CRI. LJ 214 that in the case of bail, either regularly advances, the voice of the Court of Session is not final, but is subject to revision or appellate jurisdiction of High Court and Supreme Court. In addition, these cases of bail are, either in advance or regularly, given
to the Court of Session as widely as the power of conscience contained in the High Court. The following observations were made in this regard by Chandchud, CJ in Gurbaksh Singh Sibbia etc. The state of Punjab, air 1980 SC 1632 may be taken into account. Granting anticipatory bail does not involve any risk in
handing over broad discretion to the Sessions Court and the High Court because, first of all, these are high courts run by experienced individuals; Secondly, their orders are not final but appellate or amendments are open to investigation. It may be noted that the Inspector General of Police Conference, 1981, inter-alia,
suggested that section 438 be amended so that the powers to grant anticipatory bail from the Sessions Court could be taken away and contained only in the High Courts. A group of officers constituted in accordance with the decision taken at the Meeting of Secretaries held on July 2, 1982 also agreed to it when it found
that sometimes, courts take a very liberal view in granting anticipatory bail to offenders, it was assumed that such powers should be taken from the Sessions Court and vested only in the High Court. , however, it will make it difficult for poor individuals to take advantage of the provisions. Anticipatory bail. The
Parliamentary Bill to be No. 56 of 1988 was introduced in the Lok Sabha on 13th May, 1988, out of which amendments to section 438, amendments from sub-section (1) and (2) to section 438, inter-alia, lapse of words or relate to the Sessions Court. However, these proposed amendments were ultimately not made and
both the High Court and the Sessions Court remained concurrent jurisdiction under section 438 in the case of anticipatory bail and, in our opinion, remained correct. The two judicial forums certainly have different advantages of vesting concurrent jurisdiction and giving the applicant the option to choose one of two based
on their convenience or otherwise. In some cases, these advantages have been cited. (See Shivsubramanyam v. Karnataka State and another, 2002 Cri.L.J. 1998; Y. Chandershekhar Rao v. Y.V. Kamala Kumari, 1993 Cri.L.J. 3508 (A.P.); Rameshchandra Kashiram Vora V. Gujarat State, 1988 Cri.L.J.210 (Guj.).
However, it is not easily direct why the same person has been provided with the same relief or facility in the hands of two different judicial forums one after another in exercise of their respective original jurisdiction when the effecteocable measure is available against a court order which may have been chosen by the
applicant for relief at first. One fails to understand why provision has not been made in section 438 on the lines of section 397 (3) which once the applicant has availed of. To choose one of the two alternative forums, his prop of the second stage is off in advance, if he fails to get the desired relief from the stage he has
chosen before. Thus, if a person goes to the Court of Session for anticipatory bail and fails to obtain it, why should he be allowed to file another concrete application for anticipatory bail in the High Court instead of re-amending, or, as the case may be, appeal against the order of the Sessions Court to reject the
application. Then, if the person has filed a petition in the High Court in the first time, does it not seem clearly inconsistent for the same person to move the Sessions Court for the same relief on the facts rejected by the lower court, that is, the High Court? Theoretically, it is acceptable. But, as a matter of propriety and
policy, should that person not be made to move the higher judicial forum rather than less in such cases. It is contained in the scheme of things that when two alternative platforms are provided in law for obtaining directives for anticipatory bail, one less and the other more, then the lower should be resorted to as a matter
of principle excluding the first exceptional cases, in which the applicant should be deprived of his option of transferring a fresh lower platform on the same facts and material. Any different approach could have inconsistent consequences where the relief sought at the hands of the High Court has been rejected, again
seeking the lower court without making any changes to the circumstances in which relief has been denied by the High Court. Theoretically, this may be possible but in practice it will not. Such a scenario may not have been in the musings of lawmakers. If that is the case, we fail to understand what is the specific
advantage of granting anticipatory bail by allowing persons seeking anticipatory bail to move two alternative forums one after another in their original jurisdiction for the same relief on the same facts. One of the reasons for this could be the order of the interlocutor to reject an application bail [see Zubair Ahmed Bhat v.
Jammu and Kashmir State, 1990 Cri.L.J. 103 (J&amp;K), Joginder Singh v. Himachal Pradesh State, ILR (1975) HP 181. However, Mohan Lal and others v Prem Chand and others, a different view was expressed in air 1980 HP 36 (FB), wherein it was assumed that the order of the sessions judge to deny anticipatory
bail was not the order of the interlocutor. The power of amendment conferred by sub-section (1) of section 397 is not usable in respect of any interlocutor order in any appeal, investigation, examination or other proceeding. (See section 397 (2) of the Code of Criminal Procedure, 1973. In this regard, the conflicting views
of the High Courts in various respects have led to various judicial practices which have for some time resorted to the powers of revision in high. The inherent powers of the High Courts are enforced in such cases in the fall of anticipatory bails against the orders of the courts of session and in other cases. The High Courts
exercise their inherent powers under article 227 to redress the grievance of the aggrieved person or to prevent the use of court procedure and to protect the ends of justice or to prevent illegal use of justice or jurisdiction under section 482 of the Code of Criminal Procedure or in exceptional cases. [See Shyam M.
Sachdev v. Stat and another, 1991 Cri.L.J. 300 (Delhi)]; Ram Prakash V. HP 1979 Cri.L.J. State of 750 (HP); Gullible and other V. State 1979 Cri.L.J. 718 (Allahabad); Kamal Krishna De V. State 1977 Cri.L.J. 1492 (Calcutta)]. The Supreme Court has in many cases under section 482 CRP. C has laid down the scope
and scope of powers of courts. Each high court has the inherent power to do pre-debit justice to do real and adequate justice, for whose administration exists alone, or to prevent abuse of the court process. Section 482 CRP. The underlying power under C can be exercised: (i) an order under the Code to make effect; (ii)
to prevent misuse of court procedure; and (iii) otherwise to secure the ends of justice. Section 482 CRP. The powers underlying C must be exercised, although widely exercised, carefully and with great care and only if such an exercise is justified, in particular by the tests laid down in this section. The authority of the
Court exists for the advancement of justice. If any abuse of the process of injustice is brought to the attention of the Court, the Court will be justified in preventing injustice by invoking the inherent powers in the absence of specific provisions in the Statute. Under Section 482 of the Code, the powers with the High Court
are very broad and its activity requires utmost care for complete completion of power. (See Inder Mohan Goswami and another V State of Uttaranchal and others, 207(12) scale 25 at 15). Section 482 is not governed by section 397 (2) or 397 (3). The underlying powers of the High Court are not subject to the bar
contained in section 397 as the powers of the High Court under these two sections are different, different and mutually exclusive and should not be equalized. There is nothing in the Code nor does the bar under Section 397 also affect the dimension of the inherent power of the High Court if the glaring injustice clearly
reflects the court in the face [Govind Das Biyani and others V Badarainainarayan Rathi (1995) 4 Offences 755 (MP); Smt Chander Mohini Khullar v. West Bengal State and another, 1995(4) Crime 289 (Cal.); Rajiv Bhatia v Abdullah Mohammad Ghani and another , 1992 Cri.L.J. 2092 (Bom.); Binod Sitha v Heard Devi
1986 (1) Crime 208 (Ori); Raj Kapoor and others V State (Delhi Administration) and others, AIR 1980 SC 258); Malam Singh V. Status of 1977 Kr.L.J. 730 (Raj.)]. Thus, where the application for anticipatory bail has been rejected by the Sessions Court and no amendment is against it for the order to reject the order of the
interlocutor being ordered, then the applicant's remedy would have to invoke the inherent powers of the High Court under Section 482 or constitutional powers under Article 227 of the Constitution of India. , in one case, provision is inserted in section 438 on the lines of section 397 (3). It can be seen that there is a lack of
uniformity in judicial practices in these cases which need to be corrected. One way of doing this is to be given the benefit of the amendment by making appropriate amendments to the law. It may be mentioned that the amended provision envisages the passing of an advertisement interim order on the application for
anticipatory bail application in the first, followed by a final order after hearing the public prosecutor. Moreover, such an application is not required in any pending case as it is not considered necessary to file an FIR. To add to this, the applicant cannot ultimately be put to the test if no material appears against the applicant
in the investigation of the case. In such a scenario, the final order on the application may not be in the nature of the interlocutor as the matter can be settled in the end. In addition, the use of legal fiction is not unknown to the law and often applies to fulfilling a given contingency or securing certain ends. It is thus legally
feasible to provide clearly in law that the final order on an anticipatory bail application cannot be imposed as a negotiator for the purposes of the code. And, we advise accordingly. Accordingly, the situation that will emerge will proceed on the following lines, namely, (i) both the High Court and the Court of Session shall
have concurrent jurisdiction to deal with the application for directions under section 438 and it will be open to a person to take one of these two courts to his option; (ii) Once that option is exercised and the person decides to transfer one of these courts, the person shall have no other option to transfer to another court; (iii)
where a person chooses to transfer the Sessions Court in the first time, the application for issuing directions under section 438 shall be amended in the High Court against the order of the Sessions Court; (iv) Where the person chooses to transfer directly to the High Court in the first, subject to the court's satisfaction of
special or exceptional circumstances justifying such a move, the person shall stand deprived of the above measure of amendment. In such a case, if a person aggrieved by the High Court order on his application for direction under section 438 may have to invoke the extraordinary constitutional powers of the Supreme
Court by seeking special leave to appeal to the Supreme Court. 6.4.22 We are, As per consideration, section 438 should be amended so that provision can be made on the lines of section 397 (3). All other measures that are currently provided in the code or otherwise against the final order on the application for
anticipatory bail, however, will remain available. This would also remove the sting of lawyers' objections against the amendments, particularly contained in sub-clause (1b), that applicants have been denied the right to move to another forum against the rejection of their application because they may be arrested for
appearing in court, although we have recommended the omission of that sub-section on various grounds. 6.4.23 We will summarize our recommendations in the successful chapter, and will also try to draft the revised text of section 438 as amended based on the recommendations made here. Chapter VII
Recommendations 7.1 We recommend that: (i) the provisos to sub-section (1) of section 438 shall be omitted. Sub-clause (1b) will be omitted. (iii) A new sub-clause may be inserted on the lines of section 397 (3). (iv) An explanation should be inserted to clarify that the final order on the application seeking direction under
the section shall not be imposed as a negotiating order for the purposes of the Code. 7.2 The text of section 438 shall be amended as follows: We recommend accordingly. Dr. Justice Ar Lakshmanan Chairman Prof. (Dr.) Tahir Mahmood Dr. D.P. Sharma Member-Secretary Member-Secretary

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