Law Commission On Anticipatory Bail Norms
New Delhi | Wednesday, Dec 26 2007 IST
Mere rejection of an anticipatory bail application is no ground to direct the applicants immediate arrest just as nothing bars arrest if there are reasonable grounds for it, the Law Commission of India submitted today.
The findings were handed over to Law and Justice Minister Hans Raj Bhardwaj by former Supreme Court Judge A R Lakshmanan, who now heads the Commission, a government statement said.
In Indian law, anticipatory bail is dealt with under Section 438 of the Code of Criminal Procedure, which was sought to be amended through the Code of Criminal Procedure (Amendment) Act, 2005.
But its enforcement was kept in abeyance and expert opinion requested after lawyers protested some of the proposed changes. Anticipatory bail known often to have been resorted to by politicians and other influential persons who have a brush with the law means ''big fees''-- running into lakhs of rupees-- for lawyers.
The statement said the Law Commission was asked to ''suggest a modified version to make the provision workable with suitable safeguards to protect the rights and liberty of the citizens.'' The amended section requires the applicant's presence at the final hearing of the anticipatory bail application, if, on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
It also permits the applicant's arrest by police without warrant on the basis of accusations apprehended in the anticipatory bail application in cases where either the application is rejected or no interim order is passed thereon. The statement said the Commission examined the scope and ambit of the existing as well as the amended section 438 in the light of various judicial pronouncements on the subject.
It held that the Proviso to sub-section (1) of Section 438, as amended, permitting the applicant's arrest by police without warrant on the basis of the accusation apprehended in the application, ''is more of explanatory nature.'' It pointed out that ''there shall be no bar to such arrest if there are otherwise reasonable grounds to make such arrest.'' Citing Supreme Court decisions in M C Abraham and another Vs State of Maharashtra (2003) 2 SCC 649, the Commission held that ''the mere fact that an anticipatory bail application is rejected is no ground for directing the applicants immediate arrest.'' It went on that ''there may be cases where an application may be rejected and yet the applicant is not put up for trial as, after investigation no material is found against him.'' It said that the ''power of arrest has to be exercised with due caution and circumspection and not in any mechanical manner.'' Concluding that the Proviso of sub-section (1) of Section 438, as amended, was ''not necessary'', the Commission recommended its omission.
The Commission recommended deleting sub-section (1B) of Section 438 about the applicant's presence at the final hearing.
It held that when an applicant appears in the Court in compliance with the Courts order and is subjected to the Courts directions, he may be viewed as in the Courts custody and this may render the relief of anticipatory bail infructuous.
It also noted that the concurrent jurisdiction of the Court of Session and the High Court under Section 438 had generated much ''avoidable'' litigation.
The Code does not prescribe any specific order in which the two alternative concurrent forums are to be approached for the grant of anticipatory bail-- the choice having been left to the applicant.
It recommended streamlining procedure by providing that if an application under Section 438 is made by a person either to the High Court or the Court of Session, no further application by the same person shall be entertained by the other Court.
This be done, it said, by inserting an explanation to the effect that final order for direction under sub-section (1) of Section 438 will not be construed as an interlocutory order.
-- (UNI) -- 26DI42.xml
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