PRE-ARREST BAIL: Section 438(4) Cr.P.C, NEW VISTA DETERMINED
The principles of anticipatory
bail as contained in Section 438 of Code of Criminal Procedure and that is too
well known. The parameter of granting of anticipatory bail are also duly
settled, by and large. We also know that the High Court and Court of Sessions
have concurrent jurisdiction as regards, entertaining a plea of anticipatory
bail. However, what has evolved subsequently is that, the anticipatory bail
petition is required to be preferred in the court of first instance i.e court
of Sessions and only thereafter before a concerned high court. Be that as it
may, for the present, what is of utmost significance, for the purpose of the
present write up is, whether, while dismissing the anticipatory bail petition
by the Sessions Court, some time or protection for limited period should be
granted to the accused/ petitioner or not? More so, when the interim protection
was previously granted. If the time period of protection is to be granted in the
circumstances, for raising plea in high court, what should be the time limit? This
is of paramount importance, in general and with reference to State of
Maharashtra, in Particular, since the state of Maharashtra has amended the
Section 438 and section 438 (4) shall be of significance, in this context. The
perspective in this regard has now evolved and the issue shall be delineated
further, while also referring to broad contour of Section 438 of Cr.P.C and
settled law.
As per 203rd Report of the Law Commission of India
submitted in December 2007, an accused is expected to first approach the
Sessions Court to seek anticipatory bail and if an adverse order is passed,
then, to approach the High Court, seeking anticipatory bail under Section
438 of the Cr.P.C. Therefore, this two stage process of exercising right
to move the Sessions Courts, initially, and then, the High Court for seeking
anticipatory bail under Section 438 of the Cr.P.C. The recommendation has
since been recognized and despite the concurrent jurisdiction as per the Code
in practice, the applicant seeking anticipatory bail has to first approach the
Sessions Court.
Section 438 of Cr.P.C has been amended by various
states. For the purpose of present discussion, the Maharashtra amendment of
Section 438, with particular emphasis on clause
(4) shall be the issue before hand.
The recent judgment captioned as Dr. Sameer Narayanrao
Paltewar vs The State Of Maharashtra, Criminal Application (APL) No. 393 of 2021, pronounced on 21st August 2021 by the Nagpur Bench of Bombay
High Court is of worth reference in as much as a new dimension is deliberated
in it i.e section 438(4) of Cr.P.C applicable to State of Maharashtra and its implication
vis a vis the basic law of anticipatory bail is discussed.
However, it will be apt, before
proceeding further to dwell in the amended section 438 of Cr.P.C, as applicable
in Maharashtra is reproduced as under:
"Substitution of section 438 of Act 2 of 1974 :-
For Section 438 of the Code of Criminal Procedure,
1973 (2 of 1974), in its application to the State of Maharashtra, the following
section shall be substituted namely :-
438. Direction for grant of bail to person apprehending arrest. -
(1) When any person has reason to believe that he may be arrested on an
accusation 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 that in the
event of such arrest, he shall be released on bail; and High Court may, after
taking into consideration, inter-alia, the following factors :-
(i) The nature and gravity
or seriousness of the accusation as apprehended by the applicant;
(ii) the antecedents of the
applicant including the fact as to whether he has, on conviction by a Court
previously undergone imprisonment for a term in respect of any cognizable
offence;
(iii) the likely object of
the accusation to humiliate or malign the reputation of the applicant by having
him so arrested, and
(iv) the possibility of the
applicant, if granted anticipatory bail, fleeing from justice, either reject
the application forthwith or issue an interim order for the grant of
anticipatory bail :
Provided that where the
High Court or, as the case may be, the Court of Session, has not passed any
interim order under this sub-section or has rejected the application for grant
of anticipatory bail, it shall be open to an officer in charge of a police
station to arrest, without warrant the applicant on the basis of the accusation
apprehended in such application.
(2) Where the High Court or, as the case may be, the Court of
Session, considers its expedient to issue an interim order to grant
anticipatory bail under sub-section (1), the Court shall indicate therein the
date, on which the application for grant of, anticipatory bail shall be finally
heard for passed on order thereon, as the Court may deem fit; and if the Court
passes any order granting anticipatory bail, such order shall include inter
alia the following conditions, namely :-
(i) that the applicant shall make himself available for
interrogation by a police officer as and when required;
(ii) that the applicant
shall not, directly or indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the accusation against him so as to
dissuade him from disclosing such facts to the Court or to any police officer;
(iii) that the applicant
shall not leave India without the previous permission of the Court; and
(iv) such other conditions
as may be imposed under sub-section (3) of Section 437 as if the bail
was granted under that section.
(3) Where the Court grants an interim order under sub-section (1),
it shall forthwith cause a notice, being not less than seven days notice,
together with a copy of such order to be served on the Public Prosecutor and
the Commissioner of Police, or the as the case may be, the concerned
Superintendent of Police, with a view to give the Public Prosecutor a
reasonable opportunity of being heard when the application shall be finally
heard by the Court.
(4) The
presence of the applicant seeking anticipatory bail shall be obligatory at the
time of final hearing of the application and passing of the final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.
(5) On the date indicated in the interim order under sub-section
(2), the Court shall hear the Public Prosecutor and the applicant and after due
consideration of their contentions, it may either confirm, modify or cancel the
interim order made under sub-section (1)."
From a perusal of sub-section 4 of Section 438 of the Cr.P.C.,
as applicable to the State of Maharashtra, quoted above, it is provided that if
the Public Prosecutor moves an application seeking presence of the applicant before
the Court at the time of final hearing of an application for anticipatory bail
and the Court considers such presence necessary and in the interest of justice,
it becomes obligatory for the accused to remain present before the Court. The
physical presence of the applicant (accused) before the Court at the stage of
final hearing obviously exposes him to arrest, the moment his application for
anticipatory bail is dismissed upon final hearing. If the accused who may be
arrested in such a situation shall have his valuable rights of moving high
court, curtailed. Not only that the concurrent jurisdiction vested in the High
Court shall stand nullified and frustrated. The key questions , in this
backdrop has thus emerged:
Key Questions:
1. What is the fate of an
accused, who is directed to remain present in the Sessions Court pursuant to a
direction under Section 438(4) of the Code of Criminal Procedure, 1973
when his application for anticipatory bail is rejected?
2. Is he not exposed to
immediate arrest, as the interim protection operating during pendency of the
application vanishes with the dismissal of the application? Is he, then, not
deprived of opportunity to move the High Court for grant of anticipatory bail by
invoking the concurrent jurisdiction of the High Court under Section 438 of
the Cr.P.C.?
It is an undeniable fact that the Sessions Court as well as the
High Court exercise concurrent jurisdiction, insofar as applications for
anticipatory bail under Section 438 of the Cr.P.C. are concerned. Though, after the
recommendation of 203rd Law Commission report, the anticipatory bail
is required to be preferred before the Courts of Session. In this background,
if it is incumbent on the accused to appear in the course of final hearing and
in case the application dismissed, the accused is likely to be arrested
forthwith and the every power of high court u/s 438 of Cr.P.C shall stand
nullified. Thus, what is provided for by statute is prone to be taken away in a
manner as aforesaid.
Dr. Sameer Narayanrao Paltewar case
The petitioner was a Nero Surgeon, practicing since 1999, who has
been instrumental in establishing the Neuro Science Department of a Super
Specialty Hospital at Nagpur. The complainant and the applicant are the
Directors of a company operating the said Hospital and the complainant has
lodged a criminal complaint, due to disputes that have arisen, and Crime No.
77/2021 was registered against the applicant for offences punishable
under Section 406,409,420,465,467,468,
and 471 of the
Indian Penal Code (IPC) and Section 66 –C of the
Information Technology Act, 2000.
The petitioner in Dr. Sameer Narayanrao Paltewar (Supra) had claimed that appropriate directions are required from this Court in the
context of Section 438(4) of the Cr.P.C., Maharashtra Amendment, so
as to ensure that the very remedy of pre- arrest bail or anticipatory bail is
not frustrated when the Sessions Court directs the accused to remain present
under the said provision at the time of final hearing of the application for
anticipatory bail. The contention is that when the presence of the accused is
insisted upon under Section 438(40 of Cr.P.C., in the eventuality of
the application for anticipatory bail being rejected, interim protection needs
to be extended for a reasonable time, so that the accused is not deprived of
the opportunity to knock the doors of the High Court to seek anticipatory
bail, as the High Court exercises concurrent jurisdiction in the matter. The
submission is that in the absence of any such direction, the moment an
anticipatory bail application of an accused is rejected and the applicant
(accused) is obliged to remain present before the Sessions Court pursuant to
direction under Section 438(4) of Cr.P.C., there is every possibility of the
Investigating Officer arresting the accused then and there, as a result of
which, the accused would stand deprived of approaching the High Court, thereby
frustrating the very remedy available under Section 438 of Cr.P.C.
The applicant was granted interim protection initially, while
directing him to join investigation. The applicant was directed to remain
present in the Court at the time of final hearing of the application for
anticipatory bail. The applicant apprehended arrest, in the event, his
anticipatory bail was dismissed by the ld Sessions court and thus, approached
high court on that premise. The high
court decided to look into the issue raised in the matter pertaining to the
scope and amplitude of Section 438(40 of Cr.P.C. as applicable to the
State of Maharashtra. Interim order was passed in favour of the applicant to
the effect that if the Sessions Court rejected the anticipatory bail
application, the interim protection operating in favour of the applicant would
continue for a period of 72 hours, to enable him to approach the high court.
The Maharashtra Amendment to Section 438 of Cr.P.C.,
incorporating sub-section (4) therein, ought to be read in such a fashion that
it operates in the interest of justice and in the interest of the prosecution
as well as the accused. The Court can continue the conditions imposed for grant
of interim protection during pendency of the application before the Sessions
Court or the Court can impose further conditions also, while extending the
interim protection for a reasonable period of time, in the interest of justice.
The expression "interest of justice" is used in Section 438 (4) of
the Cr.P.C. as applicable to the State of Maharashtra, ought not to be
interpreted in a narrow fashion to mean only the interest of prosecution, but
also to take care of the interest of the accused.
The Hon'ble Supreme Court in the cases of Shri Gurbaksh Singh Sibbia
and Others Vs. State of Punjab (1980) 2 SCC 8 565, Sushila Aggarwal and
Others Vs. State (NCT of Delhi) and Another (2020) 5 SCC 1 and judgment and
order dated 04/12/2009, passed by Bombay High Court in Criminal Application No.
5307 of 2009 (Ashik Rameshchandra Shah and Others Vs. State of Maharashtra) are
also a point of reference.
A Division Bench of Bombay High Court in a matter captioned as Abdul Razzak Abdul Sattar and Anr. Vs. State
of Maharashtra and Ors., in Criminal Writ Petition No. 355 of 2011 vide judgment
dated 19/07/2011, had rejected the challenge of Section 438(4) of Cr.P.C, as
being violative of Article 14 and 21 of Constitution of India, and its validity
was upheld.
The issue, however, is, if interim order /protection was earlier
issued, whether preferring application before high court apprehending final
order of dismissal shall be justified or not?
In the State of Maharashtra Vs Kachrusingh Santaramsingh Rajput
and another (1994) 3 Bom CR 348, the high Court had an occasion to comment upon
the apprehension expressed on behalf of the applicant. It was held that this
Court needs to consider as to whether the accused is entitled for appropriate
directions, extending the interim protection operating during pendency of the
anticipatory bail application before the Sessions Court, for a reasonable
period, in the event the application is rejected upon final hearing, so as to
enable the applicant to approach the High Court by invoking concurrent jurisdiction
under Section 438 of the Cr.P.C.
The high court has held that the very purpose of introducing Section
438 in the Cr.P.C and the new form in which it was brought into force
in the State of Maharashtra was to strike a balance between the interest of the
State to investigate through police into offences according to established
procedure of law and the individual liberties of a person accused of serious
crimes. The expression "in the interest of justice" was deliberated
upon and it was held that the said expression was not limited to concern for
the rights of the accused, but also, the duty of the State to investigate into
serious offences in a proper and efficient manner. In the case of Vijaya Ramesh
Ramdasi V. State of Maharashtra, (Criminal Application No. 569 of 2001),
decided on 20/03/2001, the Bombay High Court held as follows:
"8. While considering, whether the grant of interim
anticipatory bail is sine-qua-non for the Court to order personal presence of
the applicant on the date fixed for final hearing, practical effect of
the scheme as a whole must be taken into consideration. In case the applicant
is not granted interim anticipatory protection and still the Court directs the
applicant to remain present in the Court on the date fixed for final hearing,
by virtue of proviso to sub-section (1), it is open for the investigating
Officer to effect arrest of the applicant. The direction under sub-section (4),
if considered as an independent and irrespective of interim protection, will
prove to be a mouse trap and not a protection of personal liberty of the
citizen. Being under the Court directions the applicant would be obliged to
proceed towards the Court and investigating Officer can wait at the entrance
gate of the Court premises”.
It must, therefore,
be said that the Court entertaining the application for anticipatory bail shall
be in a position to insist for personal presence of the applicant, although in
the interest of justice on the date fixed for final hearing or on any other
date fixed for hearing, provided the applicant is granted protection by interim
anticipatory bail. In case sub- sections (3), (4) and (5) are not to be read
together in this fashion, by virtue of proviso to sub-section (1) the Court
itself shall be indulging into frustrating the petitions."
The Bombay High Court in its judgment and order dated 04/12/2009,
passed in the case of Ashik Rameshchandra Shah and Others Vs. State of
Maharashtra (supra) held as follows:
“ I am,
therefore, fortified in my view by virtue of the observations made by the
aforesaid three learned Single Judges of this Court on this aspect. Therefore,
I am of the view that the learned Sessions Judge clearly erred in directing the
applicants to remain present in Court without granting any interim protection
in this case”.
The high
court has held that the said provision is being used by the prosecution for the
purpose of arresting the accused and the Courts, very often, after passing an
order under sub-section (4) of Section 438 do not grant any interim
protection. It was thus held that it would be appropriate to take into
consideration the scheme of Section 438 of Cr.P.C, that if an application
is preferred by the prosecution for the purpose of securing presence of the
accused, the Courts, if they want to pass favourable order granting the
application in such cases it would be appropriate, if some reasons are assigned,
as to why it feels that presence of the accused is necessary and ordinarily
should grant interim protection to the accused so that the prosecution on the
pretext of securing presence of the accused does not arrest the accused and
make his application infructuous.
The Division Bench of the Bombay High Court in Razzak Abdul Sattar (Supra) has
specifically held that the aforesaid amendment does not violate Article 21
of the Constitution of India, because the right conferred to the accused
under Section 438 of the Cr.P.C. is a statutory right, regulated by
certain reasonable restrictions.
Thus, as the requirement of sub-section 4 of Section 438 of
the Cr. P.C. as applicable to the State of Maharashtra, has to be
satisfied by the accused when the Court upon an application of the Prosecutor
considers presence of the accused necessary in the interest of justice at the
time of final hearing of the application. This Court in the
aforementioned judgments has repeatedly held that such applications cannot be
casually moved by the prosecution and they cannot be routinely allowed by the
Sessions Court under Section 438 (4) of the Cr.P.C. It has been also
specifically laid down that such a direction under Section 438 (4) of
the Cr.P.C. can be issued for the presence of the accused before the Court at
the stage of final hearing of the application, only where an interim order of
protection from arrest is operating in favour of the accused. As regards the
further step whereby the accused can knock the doors of this Court i.e. the
High Court to invoke concurrent original jurisdiction under Section 438(4)
of the Cr.P.C.
SUPREME
COURT
In Nathu Singh Vs VERSUS
State of Uttar Pradesh & Ors, CRIMINAL APPEAL No.522 OF 2021,
The Supreme Court based on constitution bench judgment in a matter reported as Sushila Aggarwal v
State (NCT of Delhi), (2020) 5 SCC 1 has
held that after dismissal of anticipatory bail plea protection granting for
Ninety (90) days was uncalled for. Moreover, while granting interim relief,
reasons should be given for passing such order. It may be noted that provision
of Section 438(4) Cr.P.C of Maharashtra amendment ordains that the accused may
be directed to remain present in final hearing and therefore, limited
protection in view of Article 21 of Constitution of India was considered
necessary.
The broad guidelines thus has emerged as
under:
(i) The
Prosecutor under Section 438( 4) of the Cr.P.C. (Maharashtra Amendment)
shall state cogent reasons while seeking the obligatory presence of the accused
before the Sessions Court at the time of final hearing of the application for
anticipatory bail.
(ii) The Sessions Court shall consider such an application and pass a reasoned order as to why the presence of
the accused is necessary, in the interest of justice, at the time of final
hearing of application for grant of anticipatory bail.
(iii) If the Sessions Court rejects the application
for anticipatory bail upon final hearing and the accused is present before the
Sessions Court in pursuance of directions given under Section 438(40 of
the Cr.P.C. (Maharashtra Amendment), the Court shall extend the interim
protection operating in favour of the accused for a minimum period of three
working days, on the same conditions on which interim protection was granted
during pendency of the application for anticipatory bail or on such further
conditions as the Sessions Court may deem fit, in the interest of justice.
(iv) In cases where the Sessions Court deems it
appropriate to grant extension of interim protection for more than three
working days, it shall record reasons for the same and in any case, such extension
of interim protection upon existing conditions or further stringent
conditions, shall not exceed a period of seven working days.
(v) The accused shall abide by the conditions so
imposed by the Sessions Court while granting extension of interim protection,
failing which such interim protection shall cease to operate instantaneously.
The above shall make it
abundantly clear that Section (4) to Section 438 of Cr.P.C. as applicable
to the State of Maharashtra, creates a situation that when the Court directs
presence of the applicant (accused) in the Court on an application moved by the
Prosecutor, unless there is an order granting interim protection from arrest to
the applicant, there is every possibility of the applicant being arrested on
his remaining present in the Court, thereby frustrating the very right
available under the said provision. It is submitted that high court is required
to settle the issue. it is already held by the high Court that the direction to
the accused to remain present in the Court by exercising power under Section
438(4) of Cr.P.C., can be granted only when interim protection is already
operating in favour of such an accused.
REMARK
Therefore, it is no longer ambiguous that when a
Sessions Court in terms of Section 438(4) Cr.P.C as applicable in Maharashtra,
mandate the accused to appear for final hearing and if the accused was
otherwise protected with interim orders, appearing in terms of order passed u/s
438(4) shall render him exposed to arrest and in essence that shall be akin to
negating the basic rights of individual of availing legal option in High Court.
Thus, if a Sessions Court, dismisses the anticipatory bail application, a
reasonable period is required to be accorded to an accused for seeking relief
in high court or higher courts. The Bombay High Court has already made the
position clear. Even otherwise, the provision of Anticipatory bail u/s 438 of
Cr.P.C does not contain any fetter and hon’ble Supreme Court has held in
Sushila Aggarwal (Supra) that the anticipatory bail is generally granted not
for a finite period but till conclusion of trial. Though, the courts are
empowered to pass limited period order, if the situation and circumstances so
entails. The right to life and liberty is well recognized and adjunct to that is
right to legal aid and if upon final hearing, accused is ordered to appear as per
mandate of section 438(4) of Cr.P.C as applicable in Maharashtra, if upon
dismissal of bail plea, he is exposed to the danger of being arrested
forthwith. The accused shall be entitled to seek legal remedy and state cannot
deprive an accused from seeking legal remedy and therefore, the judgment of
Bombay High Court in Dr. Sameer Narayanrao Paltewar (Supra) is
apt and in consonance with the judgments rendered by hon’ble Supreme Court.
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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