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Critical Analysis of Law of Anticipatory Bail with Special Reference to Cases Decided by Supreme Court of India.
PROJECT REPORT
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Contents
Introduction3
Meaning..4
Object..5
Forum.....9 Consideration.9
Blanket Order.11
Conclusion..14
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Introduction
There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumptions that the former are more likely to commit a crime and the later are more likely to commit it. Lord Russell said It was the duty of magistrate to admit accused person to bail, whenever practicable, unless strong grounds for supposing that such person would not appear to take their trial .It was not the poorer class who did not appear, for, their circumstances were such as to tie them to the place where they carried their work .They had not the golden wings with which they fly from justice. Section 438 of Code of Criminal Procedure 1973, makes provision enabling the superior courts to grant anticipatory bail i.e. a direction to release a person on bail issued even before the person is arrested. The Law Commission considered the need for such a provision and observed: The necessity for granting anticipatory bail arises mainly because sometimes influential person try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
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Meaning
The word anticipatory bail is not found in Section 438 or in its marginal note. In fact anticipatory bail is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants anticipatory bail, what it does to make an order that in event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and, therefore, it is only on arrest that the order granting anticipatory bails becomes operative. It has also been held that anticipatory bail cannot be granted to a person to do something which is likely to be interpreted as commission of a crime even if the offender intended it as something in exercise of his rights. The expression anticipatory bail is convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. The Section, however, makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the magistrate. The issuance of warrant by the Magistrate against a person justifiably gives rise to such an apprehension and well entitles a person to make a prayer for anticipatory.1 Issuance of summon for appearance also entitles an accused to apply for anticipatory bail.2Section 438 empowers the High Court and the Court of Session to grant anticipatory bail i.e. a direction to release a person on bail issued even before the person is arrested.
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Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H) P.V. Narasimha Rao v. Delhi Admn., 1997 Cri LJ 961 (Del).
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Object
Under the old Code of 1898, there was a conflict of judicial opinion about the power of court to grant anticipatory bail. Some High Courts were of the view that the Court could grant such bail but the majority view was that there was no such power in the Court. The law commission, therefore, in its Forty-first Report recommended introduction of a provision to grant anticipatory bail and stated the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to submit to custody, remain in prison for some days and then apply for bails. Commenting upon the provision, the Law Commission, in its Forty-eighth Report observed We agree that this would be a useful addition, though we must add that it is only in very exceptional cases that such a power should be exercised.
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only after arrest. The Court cannot restrain arrest . An interim order restraining arrest if passed while dealing with application under Section 438 would amount to interference in investigation and therefore such an order cannot be passed under Section 438. According to sub-section (3) of this section if a person, who has been granted anticipatory, is arrested without by an officer in charge of a police station and he 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.
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1. 2.
Balachand Jain v. State of MP, AIR 1977 SC 366. Gurubaksh Singh v. State of Punjab AIR 980 SC1632
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Considerations:
As seen above, relevant considerations governing the discretion of the court in granting anticipatory bail are materially different from granting bail to a person who is arrested in the course of investigation or a person who is convicted and his appeal is pending. Anticipatory bail to some extent extrudes in the sphere of investigation of crime and the court, therefore, must be cautious and circumspect in exercising such power. When a person is accused of serious offence, such as murder, exceptional and compelling circumstances must be made out for granting bail.
Forum
Section 438 confers concurrent jurisdiction of granting anticipatory bail on High Court and Court of Session. The power being unusual in nature is entrusted only to the echelons of judicial service. Some High Courts have taken the view that ordinarily, a Court of Sessions must be first moved by an applicant. It is, however, submitted that when concurrent power is conferred on the High Court as well as on the Court of Session, no such restriction can be read in Section 438. Again, some High Courts have held that after the Court of Sessions rejects an application, an applicant cannot move the High Court for same relief unless circumstances have changed. It is submitted that this view is erroneous. In Chandra Erappa v. State, the High Court of Karnatka rightly observed: Of course , there can be no doubt as that in the hierarchy, Court of Session is subordinate to the High Court; a party who makes an application under Section 438 of the code before the Sessions Court could approach the High Court, if his application had been rejected by the Court of Session, but not vice versa. In other words, if the party chooses to file an application under Section 438 of the Code before the High Court and it is rejected, he cannot thereafter approach the court of Session under the same provision and on the same grounds
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Conditions
The high court and the court of sessions to which the application for anticipatory bail is made can impose such conditions as the case may warrant. The conditions mentioned in Section 438(2) are merely illustrative and not exhaustive. The court while granting anticipatory bail must remember that the investigation has not yet been completed and, therefore, it is the duty of the court to ensure that the investigation should not be hampered or intervened with in any manner. The court however, cannot impose a condition other than warranted by law. Thus, no direction can be issued to effect that the applicant, if arrested should be released on bail provided he produces the alleged stolen property before the investigating officer. Such order can be set aside by the High Court in revision or by exercising inherent powers.
Duration
An order of anticipatory bail passed under Section 438(1) need not to be limited in the point of time. The Court may, however, limit the operation of the order and direct the applicant to obtain an order under Section 437 or Section 439 of the code within that period. An order of anticipatory bail does not ensure till the
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end of trial, but must be for a limited duration till the trial courts has necessary material before it to pass such orders as it thinks fit. Grant of unconditional blanket protection is untenable and liable to be set aside.
Procedure
Section 438(2) is really a machinery provision for working out an order passed under Section 438(1). It envisages a situation where the court decides to proceed against the accused who has been granted anticipatory bail. All subsequent steps must be in conformity with the order issued by the Court under Section 438(1).
Blanket Order
A blanket order of anticipatory bail is an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. Such a blanket order of anticipatory bail should not generally be granted. Since the section requires the applicant to show that he has reason to believe that he may be arrested, such belief must be formed only if there is something tangible to go by on the basis of which it can be said that the applicants apprehension is genuine. Normally, therefore, a direction should not be issued under Section 438(1) to the effect that the applicant should be released on bail whenever arrested for whichever offence whatsoever. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even
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if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
Successive Application
A second application after rejection of the first one under Section 438 is maintainable if there are additional facts, further developments and/or different considerations.
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Conclusions
It is submitted that the following observations of Chandrachud CJ in Gurbak Singh v. State lay down correct law regarding exercise of power to grant anticipatory bail under Section 438 of the code, therefore are worth quoting: It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several others considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead the making of charges, a reasonable possibility of the applicants presence not being secured at the trial, a reasonable apprehension that the witness will be tampered with and the larger interests of the public or the State are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. Thus it can be said that there may be situations where arrest and detention may be unjustified and these powers are sometimes misused. Therefore, a duty is cast on the court in such situations to examine the facts carefully and to ensure that no prejudice is caused to the investigation. It is delicate balance whereby the liberty of the citizen and the operation of the criminal justice system have both to be equally safeguarded. Where it is pointed out that the action is mala fide or tainted the courts are required to do justice by preventing harassment and unjustified detention. The court has to keep in mind while deciding an application for anticipatory bail the nature and seriousness of the proposed charges and the larger interests of the public or the state.
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