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Anticipatory Bail -Section 438 CRPC -Laws In India

Anticipatory Bail -Section 438 CRPC -Laws In India

The law behind Anticipatory Bail -Section 438 of CrPC, I will explain here, and How and When Anticipatory Bail -Section 438, is applied and in which matter it can be applied. Anticipatory Bail -Section 438 CrPC, means pre-arrest bail. Or we can say it is the bail that is granted before arrest. It is called Anticipatory Bail -Section 438 CrPC.

What is bail

• Black’s Law Dictionary (4th edition) describes bail ” as procuring ” the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court? “

In the 1973 case Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry, the Calcutta High Court explained the principle behind giving bail:

The News

The News The Kerala High Court granted anticipatory bail filmmaker Aisha Sultana in the sedition case registered against her for a remark she made against Lakshadweep administrator Praful Khoda Patel. Sultana criticized the Center and called Patel a ” bioweapon ” during a debate on a Malayalam news channel about the ongoing political crisis in Lakshadweep.

What is bail

• “The law of bails … has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz . the presumption of innocence of an accused till he is found guilty.

Then what is Anticipatory Bail -Section 438

• As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before an arrest is made.

Code of Criminal Procedure, 1973 (Anticipatory Bail -Section 438)

•Anticipatory Bail -Section 438 lays down the law on anticipatory bail.

• Section 438 ( 1 ) (Anticipatory Bail -Section 438) of the provision reads: ” When any person has reason to believe that he may be arrested on an allegation 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.”

• The provision empowers only the Sessions Court and High Court to grant anticipatory bail.

•Anticipatory Bail -Section 438 – became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898) after the 41st Law Commission Report of 1969 recommended the inclusion of the provision. The report said, – “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 …

Apart from false cases, where there are reasonable grounds for holding that a person accused of an offense 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.

” In the 1980 Gurbaksh Singh Sibia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice YV Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution ( protection of life and personal liberty).

• It also observed, ” It may perhaps be right to describe the power ( of anticipatory bail ) as of an extraordinary character … But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.

” State (CBI) v. Anil Sharma ( 1997 ) “

• grant of pre-arrest bail at this stage would elude the success of the investigation as the accused knows he is protected by the order. The Court further noted that the grant of pre-arrest bail in economic offenses would definitely hamper the investigation.

• The bench observed ” Anticipatory Bail cannot be granted as a matter of right. It has to be exercised sparingly, especially in economic offenses which constitute a class apart.

P Chidambaram v. Directorate of Enforcement 2019

• Delhi High Court refusing to grant anticipatory bail in a case alleging money laundering in FDI transaction of INX Media. The appellant was accused of receiving ‘ kickbacks ‘ for FIPB clearances for FDI of INX media. The High Court of Delhi refused the application observing ” It is a classic case of money laundering “.

• The learned judge noted, ” considering the gravity of the offense and the evasive reply given by the appellant while he was under the protective cover of the Court are the twin factors which weigh to deny pre-arrest bail to accused ” . ,

•Rejecting the anticipatory bail plea, a bench of Justices R. Banumathi and A.S. Bopanna said the power to grant anticipatory bail was an “extraordinary power” that had to be used “sparingly”, and in “exceptional cases”, more so in economic offenses, as they affect the “economic fabric of society”.

• In its order, the Supreme Court said, ” Anticipatory bail is not to be granted as a matter of rule and to be granted only when the court is convinced that exceptional circumstances exist to resort to that remedy. “

Judicial discretion

• The legislature grants wide discretion to the High Court and the Sessions Court by including the term ” may, if it thinks fit ” in Section 438. There can be no straitjacket formulas for the exercise of power under Section 438. Any attempt to lay down a cast-iron rule by making generalizations will hamper the interest of the applicant adversely.

No Anticipatory Bail -Section 438, after Arrest

• The Court held in clear terms that the provision of anticipatory bail is to grant bail before the arrest of the applicant. , Once the applicant is arrested, he can apply for bail under Section 437 or 439 of the CrPc but not under Section 438.

Conditions while granting anticipatory bail

• Section. 438 (2) reads: ” 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

• ( i ) a condition that the person shall make himself available for interrogation by a police officer as and when required ;

• ( ii ) 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;

Exceptions to the law

• Criminal amendment bill 2018 added Clause 4 to Section 438 and created exceptions to the law.

• According to the said clause, anticipatory bail cannot be granted to a person accused of committing rape on a woman under 16 years of age, under 12 years of age, gang rape on a woman under 16 years of age, and gang rape of a woman under 12 years of age, punishable under Section 376 ( 3 ), 376 AB, 376 DA, and 376 DB Indian Penal Code, 1860.

• Further, Section 18 of the Scheduled Caste and Scheduled tribes ( Prevention of Atrocities Act ) 1989, prevents the grant of anticipatory bail in respect of offenses committed under Section 3 of the Act.

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