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TMI Blog1986 (2) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... . P. C., applies only to arrests where the court's process has not been issued. Ramachandra Raju, J., in Criminal M. P. No. 884 of 1981 agreed with the view taken by Madhusudhan Rao J. Later, punnayya J., doubting the correctness of the view taken by Madhusudhan Rao J., and Ramachandra Raju J., referred the matter in Kamalakara Rao v. State of A. P. (supra), to a Bench. The Division Bench however upheld the view taken by Madhusudhan Rao, J., in the present case crime No. 63 of 1985 was registered at narasaraopet police station against two accused on the basis of a report made by P. W. 1. A. 2 was granted anticipatory bail by the Ist additional Sessions Judge Guntur. By the time a similar application by A. 1 came up before the same Judge, the charge sheet i.e., the police report, was filed by the police before the Magistrate. The learned Ist Addl. Sessions Judge rejected the application because of that circumstances, obviously following the decision of the Division Bench in Kamalakara Rao's case (supra). Then an application was filed before this court under S. 438, Cr. P. C., on behalf of A. 1. The petition came up before Seetharam Reddy J., who felt that the decision in Kam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-sec.(1) 4. The Cr. P. C., of 1898 did not contain any specific provision corresponding to the present S. 438. There was sharp difference of opinion amongst the various High Courts on the question as to whether courts had inherent power to pass an order of bail in anticipation of arrest. While carrying out extensive amendments to the Cr. P. C., the Law Commission of India felt the necessity of introducing a provision enabling the High Court and the Court of Session to grant anticipatory bail . In para 39.9 of its report the Law Commission observed thus : 39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as anticipatory bail ) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false case for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail which will have a tendency to prejudice the fair trial of the accused . Accepting these recommendations, C. 447 of the draft bill was enacted with modifications which became S. 438 of the Cr. P. C. 5. The Scope of S. 438, Cr. P. C., was considered by the Supreme Court in Gurbaksh Singh v. State of Punjab . The Supreme Court observed thus : Advisedly, at least in part, because of the 31st Report of the Law Commission which while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 that it had considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left to the discretion of the court and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially, the legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal M. P. No. 884 of 1981 agreed with this view, In Kamalakara Rao's Case (1983 Cri LJ 872) (Andh Pra) (supra) the Division Bench agreed with the view taken by Madhusudhan Rao J., and held thus :- When the process, Ramachandra Raju, J. In Criminal M. P. No. 884 of 1981 agreed with this view, In Kamalakara Rao's case (1983 Cri LJ 872) (Andh Pra) (supra) the Division Bench agreed with the view taken by Madhusudhan Rao J., and held thus :- When the process of court is set in motion by filing the charge-sheet and issue of non-bailable warrant, the applicant is precluded from having recourse to S. 438 Cr. P. C., for anticipatory bail. Sec. 438(3) is concerned with the Magistrate. S. 438(3) is concerned with a situation of taking cognizance of the offence and issuance of warrant subsequent to or during the subsistence of the order under S. 438(1) Cr. P. C. The question of passing the order under S. 439(1) is not visualised when the proceedings commence before the Magistrate. S. 438(3) is confined to vary the warrant in the event of the order under S. 438 and there is absolutely no indication of cancellation or withdrawal of warrant. Therefore, the power under S. 438 does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madhya Pradesh 1979 Cri LJ 1485 a Division Bench of the Madhya Pradesh High Court considered this question and held that mere filing of a chargesheet cannot circumvent the benefit conferred by the provision of S. 438. In para 22 of the judgment it is held thus :- Again there is nothing in S. 438 of the Code to suggest that the order of anticipatory bail shall be effective up to a particular stage or till the filing of challan The Division Bench also proceeded to consider the question whether sub-sec. (3) of S. 438 in any manner restricts the power under-sub-sec. (1) of S. 438 and held In our opinion, there is nothing in the latter part of Sub-sec. (3) of S. 438 of the Code indicating that the Legislature did not intend the issue of direction under S. 438(1) of the Code after filing of charge-sheet. The words of sub-secs. (1) and (3) of S. 438 of the Code are clear and unambiguous. That being so, according to the elementary rule of interpretation of statutes, the grammatical and natural meaning must be given to the words. Moreover the view we take also accords with the scheme and intention of S. 438 of the Code. The object and intention of the section is to preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mere non-exercise of such power does not mean lack of jurisdiction. 10. Even in a case where cognizance is taken there may be justifiable grounds to grant anticipatory bail to a person who apprehends arrest and against whom a warrant of arrest is pending. 11. The learned Public Prosecutor however laying stress on the words reason to believe submitted that when once the charge-sheet is filed and a warrant is issued, that means the matter has reached a stage that arrest is a certainty and there is no question of the person still having only reason to believe . We are unable to read the words in the manner the learned Public Prosecutor intends to. The words reason to believe have been used in a wider sense. In Gurbaksh Singh's case (supra) it is observed as follows :- The applicant must show that the has reason to believe that he may be arrested for a non-bailable offence. The use of the expression reason to believe shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear'; is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of a vague apprehen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cr. P. C., shall remain in force until it is cancelled by the court which issued it, or until it is executed. IN such a situation also in cases of arrest pursuant to the warrant, the order under S. 438(1) has to be obeyed and can be given effect to by following the necessary procedure in the matters of releasing the persons on bail. However this difficulty does not arise even in a case where cognizance is taken because the court will have knowledge about the fact that the Magistrate has taken cognizance. Therefore, even in such a case if the court intends to grant anticipatory bail, it can lay down the necessary conditions and directions which are generally given while releasing a person under S. 437 or S. 439. In Gurbaksh Singh's case (supra) the Supreme Court in para 26 observed thus :- We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of S. 438 especially when no such restrictions have been imposed by the legislature in the terms of that section. S. 438 is a procedural provision which is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under S. 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time Similar modalities can also be applied in the case of granting of anticipatory bail under S. 438(1) even in a case where the criminal court takes cognizance and issues the warrant, depending upon the circumstances. A notice to the Public Prosecutor can be issued after the application is filed, and after hearing both sides the court will have the necessary information particularly regarding the fact of charge-sheet having been filed and the warrant having been issued, and if the High Court or the Session Court is satisfied that there are certain exceptional circumstances, then it may in its discretion, instead of directing the applicant to obtain bail under S. 437 or S. 439 Cr. P. C., grant anticipatory bail under S. 438 Cr. P. C., with suitable directions and impose necessary conditions. Of course, as pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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