SECTION 438 BAIL

MEANING

As is imperative from the term itself, term anticipatory signifies bail which is given in anticipation of something. In criminal law granting bail is regarded as rule whereas jail is exception.

The release on bail is crucial to the accused as the consequences of pretrial detention are given. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively to the preparation of his defense. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

Therefore, in simple terms, anticipatory bail is the extension of principle of natural justice particularly audi alteram partum which means nobody should be condemned unheard.

Where a person is accused of a serious crime end is likely to be convicted and punished severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trail and sentence. If such person is under arrest, it would be rather unwise to grant him bail and restore his Liberty.

Bail has been defined in law lexicon as security for the appearance of accused person on giving which he is released pending trial or investigation.

The Supreme Court has held that bail covers both release on one’s own bond, with or without sureties[i].

SECTION 438 CR.P.C – Direction for Grant of Bail To Person Apprehending Arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:

  1. a condition that the person shall make himself available for interrogation by a police officer as and when required,
  2. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
  3. a condition that the person shall not leave India without prior permission of the court,
  4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).

ANALYSIS OF SECTION 438 OF CR.P.C

The section is divided into 3 sub-sections, which have been analyzed below:

  1. SUB-SECTION 1

According to sub-section 1, any person can apply for anticipatory bail if he has a reason to believe that he may be arrested on accusation of having committed non-bailable offence. Here the legislators were clear that such an application can only be made if the offence for which the ABA is filed is a non-bailable offence. The sub-section 1 further provides that such an application can only be moved before the High Court or Session Court that is empowered to give direction to the investigating authority seeking arrest of such applicant, to release the applicant on bail in case of arrest for nonbailable offence. However, the Parliament in the year 2005, brought in an amendment requiring the courts entertaining such an application, to be more cautious while granting any relief under this provision. The amendment brought in the list of guidelines viz., the court shall take into consideration the gravity of offence, the courts shall take into consideration the antecedents of the applicant and also look into the possibility of the applicant avoiding the trial by fleeing if ABA is granted and the court shall also consider if the accusations made in the FIR are made with an intention to harass the applicant of ABA. The sub-section (1) further states that, in case the application for ABA has been rejected by the concerned court or if interim relief is not granted while the pendency of the said application then it is open for the investigating agency to arrest the said applicant without warrant on the basis of the accusation apprehended in such application. Here the legislature has given secret powers to investigating authority to take into account the apprehension made out by the applicant and to consider his apprehensions as alleged crime and arrest him to investigate why he is apprehending such an arrest.

Further Sub-section “1(A)” was added in 2005 amendment which states that in case interim relief has been granted by the concern court then a notice shall be issued to the Public Prosecutor and the SP/DCP which should not be less that 7 days in order to give reasonable time to prosecutor to defend the said application before the application is finally heard.

By inserting this provision the Parliament made it very clear that if the court is not forthwith rejecting the relief for anticipatory bail and if the court has prima facie found any merits in the application, then the application under this section cannot be disposed off unless and until the Public Prosecutor is heard.

Sub-Section 1(B) was added vide the amendment of 2005 which provides that if the public prosecutor makes an application before the court where the ABA is pending then the presence of the applicant is required during the final hearing or at the time of passing the final order, and if the concerned court deems it necessary to allow the same then the presence of the applicant is obligatory and compulsory.

  1. SUB-SECTION 2

This sub-section lays down certain conditions which need to be put on the applicant while granting him interim protection.

  1. SUB-SECTION 3

This sub-section states that if the application under this provision is allowed, and if such a person is subsequently arrested without warrant, then he should be released on bail immediately. In case the magistrate takes cognizance and issues warrant against such person then such a warrant shall be a bailable warrant.

PREREQUISITES FOR GRANT OF ANTICIPATORY BAIL

There are mainly 2 pre-requisites for applying for Anticipatory Bail before the appropriate court.

  1. The offence against which the bail is sought should be a non-bailable offence.
  2. There should be a grave apprehension that the accused will be arrested by the police authorities for such a non-bailable offence.

RECENT LANDMARK JUDGMENTS ON LAW OF ANTICIPATORY BAIL

No time limit could be fixed while granting Anticipatory Bail

Sushila Agarwal v. State of Delhi[ii]

The Hon’ble court was pleased to frame 2 questions while deciding the landmark judgment viz.:

  1. Whether the protection granted to a person under Section 438 of Cr.P.C should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail &
  2. Whether life of anticipatory bail should end at the time and stage when the accused is summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by holding that there can be no time limit set for the Anticipatory Bail by the court granting the same. The five-judge bench was pleased to unanimously hold that ” the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.”

Answering the second question the Hon’ble court held that “The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”

Not granting Anticipatory bail may cause violation of fundamental rights of an individual under Article 21 of the Constitution of India

The Hon’ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat[iii] was pleased to hold that “The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.”

The apex court while observing the above celebrates the two provisions and related them together. The court was pleased to observe that Section 438 and Article 21 goes hand in hand and that by enacting the provision for grant on Anticipatory Bail the legislature has upheld the fundamental right of the citizen.

Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with maximum 7 years imprisonment

Hon’ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar[iv] while deciding an application for ABA for offences u/s 498A, felt it necessary to observe that there should be a mandatory notice u/s 41A to be sent to the accused if he is booked for offence with punishment up to 7 years.

Rights of First Informant to intervene in Anticipatory Bail Application

The Hon’ble High Court of Bombay in the case of Vinay Potdar v. State of Maharashtra[v] held that, if victim of the offence appeared in the court seeking permission to be heard, then opportunity of being heard is to be given to him or her.

However, the apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra,[v] took a slightly contrary view to what we discussed above. The court held that “The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardized.

Is it Mandatory for police to arrest a person only because his ABA is rejected?

The Hon’ble Supreme Court, in case of M.C Abraham and Anr v. State of Maharashtra and Anr , has held that it is not mandatory for the police to arrest a person merely because his/her Anticipatory Bail has been rejected.

_______________________________________

END NOTES

[i] Moti Ram v. State of Uttar Pradesh, (1978) Cri LJ 1703, 1706.

[ii] 2020 SCC OnLine SC 98.

[iii] (2016) 1 SCC 152.

[iv] (2014) 8 SC C 273

[v] 2009 ALL M.R. (Cri.) page 687.

[v] (2014) SCC online SC 257.

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