Sunday, January 4, 2009

Law Commission Submits Report on Anticipatory Bail

The Chairman of the Commission Dr. Justice AR. Lakshmanan, former Supreme Court Judge, presented a copy of the 203rd Report on Anticipatory Bail  to the Union Minister of Law & Justice, Dr. H.R. Bhardwaj.

Section 438 of the Code of Criminal Procedure, dealing with anticipatory bail, was amended by the Code of Criminal Procedure (Amendment) Act, 2005. The enforcement of the amended provision was kept in abeyance and expert opinion of the Law Commission sought to suggest a modified version to make the provision workable with suitable safeguards to protect the rights and liberty of the citizens. The Law Commission examined in details the scope and ambit of the existing as well as the amended section 438 of the Code of Criminal Procedure in the light of various judicial pronouncements on the subject.
 As regards the Proviso to sub-section (1) of Section 438, as amended, permitting arrest of the applicant by the police without warrant on the basis of the accusation apprehended in the application, the Law Commission has been of the view that the provision is more of explanatory nature and clarifies that there shall be no bar to such arrest if there are otherwise reasonable grounds to make such arrest. Referring to the Supreme Court’s decisions in M.C. Abraham and another Vs State of Maharashtra, (2003) 2 SCC 649, the Commission has expressed the view that the mere fact that an anticipatory bail application is rejected is no ground for directing the applicant’s immediate arrest. 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. Power of arrest, therefore, has to be exercised with due caution and circumspection and not in any mechanical manner. The Commission has thus concluded that it is not necessary to have the Proviso inserted in Section 438(1) as the position on this aspect is already very clear. The Commission has, therefore, recommended the omission of Proviso of sub-section (1) of Section 438, as amended.
 As regards 
Section 438(1B) relating to the presence of the applicant at the time of final hearing, the Law Commission has critically examined the nitty-gritty of restraint and custody to which the applicant may be subjected to in terms of the court’s order under that Section. The Law Commission has come to the conclusion that when the applicant appears in the Court in compliance with the Court’s order and is subjected to the Court’s directions, he may be viewed as in the Court’s custody and this may render the relief of anticipatory bail infructuous. The Commission has, therefore, recommended deletion of sub-section (1B) of Section 438.
 The Commission has noted that the concurrent jurisdiction of the Court of Session and the High Court under Section 438 has generated much avoidable litigation. The Code has not prescribed any specific order in which the two alternative concurrent forums are to be approached for the grant of anticipatory bail. It is left to the option of the applicant to move either the Court of Session or the High Court for
 grant of anticipatory bail one after another. In order to streamline the procedure, the Commission has recommended insertion of a provision in Section 438 on the lines of Section 397(2) dealing with revision application. Accordingly, it is recommended 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. In order to provide the remedy of revision against the order of Court of Session in High Court, an Explanation is recommended to be inserted in the Section to the effect that final order for direction under sub-section (1) of Section 438 will not be construed as an interlocutory order. The Report contains a revised text of Section 438 based on its recommendation.
 It may be recalled that the amended section inter alia provided for obligatory presence of the applicant seeking anticipatory bail at the time of final hearing of the application and making final order thereon, if, on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice [
Section 438 (1B)]. The amended section also permits arrest of the applicant by the police without warrant on the basis of the accusations apprehended in the anticipatory bail application in cases where either the application is rejected or no interim order is passed thereon [Section 438 (1) Proviso]. There was widespread protest by lawyers against these amendments. The lawyers’ fraternity was of the view that the applicant would be arrested in the event of rejection of his application if present in the Court and thus he might be deprived of moving the higher Court against rejection of his application.

 Source PIB Press Release

1 comment:

AMIT said...

Its a nice post from you.

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