The State Appellant

Natturasu & Ors. Respondent

Citation 1998 CriLJ 1762

Date of Judgement 8 January 1998

Bench The Honorable Mr. Justice M.

Karpagavinayagam

FACTS OF THE CASE

Chellaih Thevar filed a complaint with the police (hereafter referred to as "Respondent") on
January 21, 1996, alleging that his daughter Isakki Amaal had been abducted under Section 155
of the CrPC. Chellaih Thevar had charged Natturasu and others (collectively referred to as
"Petitioners") of abducting his daughter on January 20, 1996. The Respondent has filed a
complaint against the Petitioners under the Indian Penal Code for the following offenses:

 Section 147 - Rioting Punishment

 Section 148 – Rioting when equipped with a lethal weapon.
 Section 448 - Punishment for trespassing on a person's home.
 Section 366(A) - Kidnapping, abducting, or coercing a lady into marriage, etc.

Isakki Amaal was saved and returned to her parents. The Petitioners had filed an application with
the Court of Session for Anticipatory Bail under Section 438 of the CrPC. The Court of Session
rejected the application on June 27, 1997, solely on the basis that the charge-sheet was already
filed and a non-bailable order had been obtained against the Petitioners on June 19, 1997. The
Petitioners filed an appeal against the Court of Session's ruling in the High Court of Madras.

The following facts were reviewed by the Madras High Court:

 The Respondent's probe was still ongoing.

 The co-accused had previously been granted bail.
  Isakki Amaal, the victim, was rescued and restored to her family.
 The Petitioners were Tirunelveli Taluk Permanent Residents.

The Petitioners are concerned about being arrested now that the charge-sheet has been filed and a
warrant of arrest has been obtained. As a result, the Madras High Court granted the Petitioners
Anticipatory Bail. If the Petitioners are arrested, they will be freed on bond. It also imposed
various requirements on the Petitioners under Section 439 of the CrPC. They will be released on
bail once each of them signs a bond for Rs. 500/- (Rupees Five Hundred), a surety for each to the
pleasure of the Judicial Magistrate-VI, Tirunelveli, and another provision that they appear in the
relevant court as and when needed. The High Madras High Court dealt with different concerns
that occur before the Courts when giving Anticipatory Bail under Section 438 of the CrPC in this
case, called as Natturasu and Ors. versus The State.

ISSUES OF THE CASE

1. What does Anticipatory bail mean?

2. What is the scope of Section 438 of the Criminal Procedure Code?
3. What is the time limit for anticipatory bail?
4. At what point in the process may Section 438, CrPC be invoked?

RULE

1. Section 438 of CrPC: Direction for grant of bail to person apprehending arrest.
2. Section 437 of CrPC: When bail may be taken in case of non- bailable offence.

ANALYSIS

 According to Wharton's Law Lexicon, bail implies "to put at free a person apprehended on
security for his presence."
In the case of Nagendra v. King Emperor1, the Calcutta High Court declared that the major
goal of bail is to ensure the accused's presence at the time of the trial and that a suitable test
must be employed to assess whether bail should be allowed or not and if the party is likely to
take his trial. In the case of G. Narasimhulu v. Public Prosecutor 2, the Supreme Court of
1
AIR 1924 Cal 476
2
1978 AIR 429

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 India stated that the purpose of bail is simply to ensure that the accused appears for trial and
that it is the obligation of courts to give release unless there are solid reasons indicating that
the accused would not come for trial. As a result, it is evident that bail is given with the goal
of ensuring the accused's appearance at the trial. It also ensures the accused's freedom,
putting him in a better position to prove his innocence in court than if he were in detention.
The same analogy holds true for anticipatory bail.
 The Legislature revised the Code, providing the High Court and Sessions Court broad
authority in granting anticipatory bail in a fairly haphazard manner. As a result, under
Section 438(1), the Legislature expressly stated that the High Court or Court of Sessions
"may, if it sees suitable," grant anticipatory bail and instruct that the defendant be released on
bail. Sections 437 and 439 of the Code do not provide such power. Furthermore, according to
Section 438(2) of the Code, the Court may set whatever restrictions it deems appropriate
when granting anticipatory bail. Section 438(2) also grants the High Court and Sessions
Court broad latitude, allowing them to utilize their judicial judgment freely. Courts may grant
anticipatory bail and set restrictions on it based on the facts and circumstances of the case, or
they may deny bail if the circumstances of the case merit it. In the case of Gurbaksh Singh v.
State of Punjab3, the Constitutional Bench of the Supreme Court held that the purpose of
introducing Section 438 and the Law Commission's intention was to give the Courts a free
hand in exercising their jurisdiction in awarding anticipatory bail, and that there can be no
unneeded limitations on the scope of Section 438. Any restriction placed on the scope of
Section 438 or an individual's right to obtain anticipatory bail would be a violation of Article
21. As a result, the Courts' jurisdiction is relatively broad, but the judicial discretion allowed
must be applied judiciously, with adequate application of mind, before granting anticipatory
bail.
 The Code makes no mention of the term of anticipatory bail. The purpose of anticipatory bail
under Section 438 is to assist people in avoiding imprisonment in jail at the request of certain
powerful individuals who do so with the intent to shame them. It refers to an individual's
independence and liberty, which would allow him to plead his case more effectively from
outside than from within a jail. As a result, there is no need for a time restriction on
anticipatory bail. As a result, anticipatory bail granted to a person remains in effect until the

3
1980 AIR 1632

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 completion of the trial, unless it is terminated by a Court in the meanwhile owing to specific
exigencies. In the case of B.L. Verma v. State of Madhya Pradesh 4, the Madhya Pradesh
High Court decided that anticipatory bail given to a person under Section 438 of the CrPC
will not be withdrawn by a Magistrate solely because a charge sheet had been filed, and it
would continue in effect until the completion of the trial until dismissed by an appropriate
Court under Section 437(5) or 439(2) of the CrPC.
 Section 438 makes no reference of a certain period or stage at which an applicant might
apply the High Court or Sessions Court for anticipatory bail relief. Section 438(1) of the
Code states that if a person has grounds to think that he will be arrested for a non-bailable
crime, he may apply to the High Court or Sessions Court for anticipatory bail. The petitioner
must have substantial reasons to think that he will be arrested. A mere worry or hazy
suspicion that someone would file an allegation against him is insufficient. The grounds on
which the petitioner thinks he may be arrested must be capable of being examined and
determined by the High Court or Sessions Court to decide if the petitioner has a "reason to
believe" that he may be arrested. Only if there is a physical foundation to indicate that the
anxiety is real must the rationale be based on reasonable grounds. Before providing
Anticipatory bail, the Courts must define the non-bailable offense for which such order is
issued. In the matter of Bimal Adak v. State 5, the Division Bench of the Calcutta High Court
ruled that the accused is ineligible to submit a motion for anticipatory bail once the charge
sheet is filed and cognizance of a non-bailable crime is taken. As a result, if a citizen is
concerned that he may be detained on an allegation of committing a non-bailable criminal, he
may contact the appropriate Courts requesting anticipatory bail, regardless of the stages.

4
1979 Cri LJ (NOC) 190
5
1997 Cri LJ 1969

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 CONCLUSION

The Madras High Court's decision in Natturasu and Ors. vs. The State, in which the Petitioner
was given Anticipatory bail against Section 438 of the CrPC. The judgment upheld and protected
the Petitioner's rights, since an accused is presumed innocent unless proved guilty in a court of
law. Originally, the Session Court refused the Petitioner anticipatory bail on the grounds that the
charge sheet was already submitted and the warrant had been filed. The Madras High Court
thoroughly examined the facts of the case and rectified the Sessions Court's error. In various
judgments, the Supreme Court of India has declared that the purpose of anticipatory bail is to
safeguard individuals' freedom and liberty from being detained at the request of certain dishonest
prominent persons. Anticipatory bail also allows an accused to defend himself more effectively
than if he were in detention. Whenever a person is afraid of being arrested on an allegation of a
non-bailable crime, he may petition the Sessions Court or the High Court and request
Anticipatory bail, regardless of the stage of the case. The Madras High Court has correctly used
the vast and huge discretionary powers conferred to the Courts by the Legislature in this great
judgment. Furthermore, it imposed certain restrictions on the Petitioner according to Section 439,
guaranteeing that the Petitioner attends before the Session Court throughout the trial. This
decision also resolved numerous often asked issues about anticipatory bail, clearing up various
misunderstandings.

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