A bail in anticipation of arrest is “Anticipatory bail”. “Arrest” includes actual seizure or touching of a person’s body in order to detain him. The power vested under S. 438 is somewhat extraordinary in character. This power under S.438 is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for believing that a person accused of an offence is not likely to otherwise misuse his liberty. Since this power is important in nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court.
Anticipatory bail – Direction under S. 438 can be issued only at pre-arrest stage. The said direction becomes operative only after arrest. Court cannot restrain arrest. If an interim order restraining arrest is passed while dealing with application under S. 438 it would amount to interference in investigation. Such order is not allowed to be passed under S. 438. The Court cannot grant anticipatory bail as a matter of right. It is essentially a statutory right conferred long after the Constitution came into force. It cannot be considered as an essential part of Art. 21 of the Constitution. And its non-application to a certain special category of offences does not mean violation of Art. 21.
Anticipatory bail – Section 438 applies not merely to offences punishable with death or imprisonment for life but to all non-bailable offences and also its applicability is not limited to offences exclusively triable by Court of Session. Pre-arrest bail – Power under S.81(1) is unavailable while application for pre-arrest bail is being considered. It cannot be stated that ‘bail’ and ‘anticipatory bail’ are two completely distinct concepts and that ‘anticipatory bail’ can never be equated with bail. It becomes explicitly clear from the collection and scheme of Chapter XXXIII and the language of S.438 that the legislature intended to bring ‘anticipatory bail’ within the category of ‘bail’ and not treat it as something different from bail. Ordinary bail vis-a-vis anticipatory bail – Ordinary bail is granted after arrest whereas latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. In this manner, the power exercisable under S.438 is extraordinary in character.
There isn’t any significant difference between S. 438 and S.439, with respect to the appreciation of the case as to whether a bail is to be granted or not. The only difference is that in a case under S.438, the person who approaches the Court in apprehension of arrest without any jurisdiction or basis whereas under S.439, such person approaches the Court after he has been arrested. Thus, the principle that governs S.439 with respect to the maintainability of the application is also attracted to an application under S.438. Though S.438 may not be subjected to limitations incorporated in Ss. 438 and 439, yet it is decision of the High Court whether a person against whom clinching material has been collected by the prosecution during the investigation should be released on bail or not. The primary purpose of such remedy is to protect the person who under the garb of criminal prosecution is so harassed that his status in the society is lowered. If the Court comes across a prosecution of like nature, then it will definitely be duty bound to protect the individual along with his status and reputation. It would not be justifiable to grant anticipatory bail if in the case brought before the court the prosecution has collected clinching evidence against accused. In one particular case petitioner, on the date of filing application was in Dubai – Additional Session Judge, Delhi allowed his application and such application was held valid since applicant though not in India filed application along with Vakalatnama duly signed by him and submitted before Addl. Session Judge – Hence, Addl. Session Judge had the power to entertain the said application. The section seeks to ensure that a person anticipating arrest is not obliged to go to jail till he is able to move the Court for being released on bail. The purposes for which the provisions of anticipatory bail are made are rather obvious. One of the reasons for arrest is that the accused should be available to the investigating machinery for further investigation. Another is that trial should not be jeopardized and to ensure that it is necessary to restrict the movement of the accused. Thus, where investigation is almost complete and the accused are not required for any further investigation, detaining the accused will serve no purpose. Though the provisions of Chapter XXXIII of the Code have not been extended to the Union territory of Arunachal Pradesh, yet that doesn’t mean that a person in wake of his arrest by police would not be entitled to get himself released on anticipatory bail since the procedure in S. 438 is connected with the personal liberty to be protected from unfair and unjust deprivation and further, it is a procedural provision. The purpose of the law-makers in introducing S.438 is to relieve a person from unnecessary apprehension or disgrace of being detained in jail for some days before he can apply for bail in cases where he may have been implicated falsely by scheming rivals, specifically, in case where the person concerned is not likely to abscond.
Nothing in sub-section (1) indicates that the apprehension of arrest should be only by a police officer and none else. Anticipatory bail cannot be granted till a case is not registered against petitioner. In case the petitioner has filed application for anticipatory bail apprehending arrest as a result of vigilance enquiry pending against him for taking illegal gratification which may lead to a case being registered against him, it is ordered that in case an FIR is registered against petitioner, investigating agency shall give a week’s time to the petitioner so that he can approach court for obtaining anticipatory bail.
Power of Court with respect to grant of anticipatory bail – Courts have power to grant anticipatory bail in non-bailable offences even when cognizance is taken or charge-sheet is filed provided facts of case require the Courts to do so. Anticipatory bail is granted in an independent manner based on merits of particular case and not the order of Magistrate choosing to summon an accused through bailable or non-bailable warrant. Word “accusation” – Charge refers to an accusation made against a person in respect of an offence alleged to have been committed by him. S. 438(3) doesn’t hedge the discretion vested in the Magistrate under S. 87 to issue summons in case in which a warrant should be issued in first instance, where the person sought to be summoned as an accused has not already obtained anticipatory bail. Person enlarged on anticipatory bail u/S. 438 has no right to apply for ordinary bail u/S. 437 as both the sections are different. They are exclusive of each other and not complementary since one relates to pre-cognizance stage while other relates to post cognizance. Hence Magistrate granting bail u/S. 437 must not be influenced by the materials coming within the ambit of anticipatory bail. The accused should appear before the Court once the process is issued and move a proper application under S. 437 or 439, instead of invoking the provisions under S. 438 unless due to sound reasons he is compelled to invoke that jurisdiction. In case the persons accused of committing bailable offence offer to surrender before the Magistrate and are willing to be taken into custody, the magistrate cannot refuse to take them into custody and on that basis, reject their application for anticipatory bail. In such circumstances, he should accept their surrender and pass an order remanding them if he is satisfied that it is not case to grant them bail.
Inherent powers of High Court – The High Court can recall its own order passed for anticipatory bail in absence of knowledge that accused had already surrendered. Anticipatory bail – Grant of – Provisions of sub-section (i) of this section are applicable to non bailable offences, both cognizable and non-cognizable.
The provisions of Section 438 apply to serious offences which are punishable with imprisonment for life or with death and in such cases there is no limitation on the exercise of powers by the High Court under this Section in absence of any clinching or conclusive materials. But such power needs to be exercised rarely and with caution. The Court has to be careful and circumspect in entertaining an application for anticipatory bail when a person is accused of an offence of murder by use of fire arm, as it intrudes into sphere of investigation of crime to some extent and grant of anticipatory bail in such cases should be backed by some very compelling circumstances. An ouster of the jurisdiction of ordinary courts must be clearly expressed or necessarily be implied and not be readily inferred. Thus where by notification special Judge has been appointed to try the economic offences under the Act notified in the said notification, the special Judge alone is empowered to consider application for bail under the economic offences and thus by implication the jurisdiction of ordinary Court is ousted. There cannot be a general principle that in all cases involving commission of economic offences anticipatory bail is to be refused. Thus delayed filing of income-tax return, is an economic offence and the appropriate factors for deciding the anticipatory bail application in cases of this type could be the deposit or non deposit of the tax assessed whether return before and after submissions of the delayed return, were submitted within time, what is the extent of the amount due, the likelihood of the accused to abscond etc. had to be seen. Therefore, in case amount due along with the penalty had been deposited at the time of filing of complaint that would be favourable to the person on account of which discretion could be exercised in granting anticipatory bail in favour of such person. The legislature has invested the Court of Session and High Court with concurrent jurisdiction by the use of the word “or” in sub-section (I) of this section. Where the earlier application for anticipatory bail failed u/S 438 then the subsequent bail application should be placed before same the Judge, so that conflicting orders are not passed and Court’s time will be saved. The expression “Court of Session” mentioned in Sections 437, 438, 439 means the Court of Session presided over by the Sessions Judge and not by Additional Sessions Judges and Assistant Sessions Judges. Therefore transfer of cases by the Sessions Judge to Additional or Assistant Sessions Judge does not affect the power of the Court of Session to grant bail. It is not necessary that pre-arrest bail application should have been filed in Sessions Court only where offence was triable by Sessions Court and hence order of anticipatory bail granted by CJM is legal.
A court of Special Judge under the Prevention of Corruption Act cannot be considered to have powers under S. 438 of the Code simply because it is deemed to be a Court of Session for certain purposes under S. 8(3) of Criminal Law amendment Act, 1952. Session court or Court of Additional Session Judge is not competent to hear and decide bail application u/S. 438 for offences committed under Narcotic Drugs and Psychotropic Substances Act. The Special Court constituted under the Act alone can entertain bail application under provisions of the Act. In case an offence was committed under Prevention of Corruption Act by Commissioner of Central Excise and Custom, the Court should be slow and circumspect in entertaining an application for pre-arrest bail of such person charged with offence punishable under said Act.
S.12AA (1) (d) of the Essential Commodities Act (10 of 1955) does not exclude the operation of S. 438 of the Code for an offence under the Act. Therefore the High Court or the Special Court, in exercise of power under S. 438 can release a person accused of or suspected of commission of an offence under the Act in the event of his arrest. If the application of the accused for anticipatory bail to the Sessions Judge is rejected, he can make a subsequent application to the High Court and vice versa. Application for grant of anticipatory bail should not be directly filed before the High Court rather first before Sessions Judge. The aggrieved party while moving an application for anticipatory bail before High court after rejection of same by sessions Court is free and at liberty to bring before High court changed circumstances as well as fresh material for consideration.
Order passed under S. 438(1) for operation of anticipatory bail can be limited in point of time. The power of High Court or Court of Sessions under S. 438 is however, not limited. Some tests which Courts normally apply while considering applications for bail include the nature and seriousness of the prosecution, the nature of evidence in support of the prosecution, the severity of the punishment which the conviction will entail, the character, behavior and standing of the accused, a reasonable possibility of presence of the accused not being secured at the trial, etc. The appropriate considerations which govern the decision of the courts while granting anticipatory bail are materially different from those for an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court. Unlike a post arrest order of bail, it is 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 direction is issued, shall be released on bail. The Supreme Court to avoid miscarriage of justice must interfere when the power under S. 438 is exercised sub silentio as to reasons or on considerations irrelevant or not germane to the determination.
When the Court is at the stage of considering an application for anticipatory bail under S. 438, it is concerned with the existence of the material against the accused and not as to whether such materials are credible or not, for the purpose of conviction. Court shall not ordinarily, as a routine, permit an anticipatory bail application to be dismissed as withdrawn or for default, unless there are strong reasons to do. It shall dispose of application only on merits if it appears to Court that petitioner may abscond or destroy or tamper with evidence by delaying or evading arrest.
High Court and Sessions Court while passing orders under S. 438 can direct: an accused at pre-arrest stage to appear for execution of bond/sureties before concerned Magistrate by way of complying per-condition in consonance with orders passed, and the accused to surrender before police for interrogation thereafter and while so, power of police to arrest accused is retained. The court must be satisfied that the arrest and detention of the petitioner would not be with the motive of securing the ends of justice in relation to the case, but with some ulterior motive and with the objective of injuring the petitioner. The court will not be justified in granting anticipatory bail merely because it is alleged that the petitioner apprehends arrest on a false accusation and that such arrest will be a cause of disgrace and dishonour to him. The Court has both right and duty to satisfy itself that the apprehension is reasonable.
Fixation of outer limit in order of anticipatory bail –– Is not dehers the statutory provisions – It doesn’t violate either the constitutional or fundamental rights of an individual. If anticipatory bail is granted without affording opportunity of hearing to State authorities – Order granting anticipatory bail is liable to be set aside. It isn’t proper for the Sessions Judge to pass an order granting bail u/S. 438 of the Code on the ground that public prosecution conceded to the same. It can hardly be a pertinent reason for invoking jurisdiction under S. 438.
With respect to amendment to Sec. 438 by West Bengal Act No. XXV of 1990 there is no restriction to pass an order for interim anticipatory bail without giving any notice to the State if Courts think such action to be appropriate and just. Ad interim anticipatory bail granted ex parte – Earlier order granting bail is reversed subsequently on hearing both the parties– Subsequent order is an order of refusal to grant bail and not an order of cancellation. Under this section the High Court is not vested with the power to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appearance before the Court of Session. Accused can be granted anticipatory bail under Section 438(1) while committal proceedings pending before Magistrate.
The powers of the High Court to grant bail are not excluded in either the Defence and Internal Security of India Act (1971) or Rules made thereunder particularly R.184. In the event of an offence under Narcotic Drugs and Psychotropic Substances Act (61 of 1985) the application for anticipatory bail under S.438 of Criminal P.C. is not maintainable in view of S.37 of that Act – Recourse to provisions of S.36A(3) of that Act also cannot be taken. With respect to offences contemplated under Customs Act, 1962, provisions of S. 438 can be applied and anticipatory bail can be granted by applying principles laid down in decisions with respect to offences under Penal Code. In the event of application for anticipatory bail filed by the petitioner apprehending arrest in pursuance of warrants of arrest in a case under S.7 of the Essential Commodities Act (1955), bail can be granted till they obtained appropriate orders from the competent court. A Special Court alone can entertain an application for anticipatory bail by an accused of an offence under S.7 of Essential Commodities Act, 1955 and not a regular Court of Session constituted under code. If the petitioner is alleged to have committed offence of breach of Clauses 3(1), 3(4) and 18 of Madhya Pradesh Motor Spirit and High Speed Diesel Oil Order, 1980 – Offences are bailable when read with Sec. 7 of Essential Commodities Act but application u/S. 438 is not maintainable. Powers of the Court with respect to grant of anticipatory bail – Persons apprehending arrest by Range Forest Officer can be granted bail under S.438 – Provisions related to bail in S.104-D of Karnataka Forest Act, 1964 are not a bar for grant of anticipatory bail. S. 104-D of the Karnataka Forest Act (5 of 1964) does not bar grant of anticipatory bail in view of use of words “if in custody” in S. 104-D since they are applicable only to the persons who are in custody in respect of forest offences. Though S. 59-A(i) of M.P. Excise Act, 1915 prohibits any court from entertaining application for grant of anticipatory bail yet Court can entertain his application for anticipatory bail if the accused is able to show that basic conditions of offence under S. 59-A(i) are absent,. Anticipatory bail/regular bail – Person involved in offence under S. 8(2) of Kerala Abkari Act (1077) are not entitled to be released on bail. Liquor tragedy case is important in this regard. Grant of pre-arrest bail to appellant merely on grounds that investigating agency would not be able to collect any material to connect appellant with crime except confessional statement of accused was held juridically condemnable – There was misuse of discretion by Sessions Judge under S.438 Cr.P.C. In the event of application for anticipatory bail by accused facing allegation of offence of adulteration of toddy punishable under S. 36 of A.P. Excise Act which could attract maximum punishment of less than two years and the offence is bailable, such application is not maintainable. Offence of storing substandard fertilizer for sale – Offence has been made non-bailable by an amendment in the relevant statute – However the Amendment Act has already lost its life hence the offence has now become bailable – This was Held, though application u/S 438 is not maintainable, in case the petitioner is arrested he can be released on bail treating the offence to be bailable. Where anticipatory bail was excluded in certain offences u/S 34 of Chattisgarh Excise Act but accused by clarificatory means is able to put forth that offences mentioned under said Act were not really there against him, his application for anticipatory bail could be entertained. Since the offence under Section 3 of the Railway Property (Unlawful Possession) Act is an offence punishable with imprisonment upto five years is a non-bailable offence and hence provisions of Section 438 are applicable to such offence if there is apprehension of arrest under Section 3 of the Act. Such offence will not become bailable simply because it is discretionary with the officer to the Force to admit a person to bail or to forward him in custody. The High Court cannot invoke the provision of anticipatory bail or principles thereof in the matters relating to detention ordered under Public Safety Act (6 of 1978). Since the offence under S.25 of the Arms Act is triable by a Special Court established under the Terrorist Affected Areas (Special Courts) Act, 1984, therefore Court’s jurisdiction is barred under Section 15(4) thereof to grant anticipatory bail under this provision of the Code.
An order which grants anticipatory bail under S 438 is merely an interlocutory order and not “final order” within the meaning of S 362 of the Code. Therefore, an application invoking inherent powers under S 482 for amending or reviewing such order to get the bail granted is maintainable. Jurisdiction of the High Court under S 438 is not ousted by the bar to the filing of revision petition against an interlocutory order. Anticipatory bail- Order granting – Since it is an interlocutory order, revision against said order is not maintainable. It is beyond the powers of a Court of revision to grant bail or anticipatory bail.
The deletion of application of S 438 in State of Uttar Pradesh by S 9 of code of Criminal Procedure (U.P.) Amendment, 1976 does not offend either of Arts. 14, 19 or 21 of Constitution and State Legislature would be competent to delete such section which pertains to a matter enumerated in concurrent list and valid under Art. 254(2) of Constitution.