Delete anticipatory bail provision: Law Commission

Delete anticipatory bail provision: Law Commission
It provides for personal appearance during final order
Lawyers fear applicant will be arrested on denial of bail
Rejection of plea is no ground for immediate arrest: Commission


New Delhi: The Law Commission has recommended deletion of the controversial amendment to Section 438 of the Criminal Procedure Code providing for personal appearance in court of a person seeking anticipatory bail when the final order is passed.
The Centre kept the amendment in abeyance and referred the matter to the Commission following a widespread agitation by lawyers in Tamil Nadu and other parts of the country.
The legal fraternity felt that the applicant would be arrested in the event of rejection of his application if he was present in the court and he might be deprived of the opportunity of moving the higher court. Commission Chairman A.R. Lakshmanan presented the 203rd report to Law Minister H.R. Bhardwaj last week.
The Commission, which held extensive consultations, said: “When the applicant appears in compliance with the court’s order and is subjected to the court’s directions, he may be viewed as [being] 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 Cr.PC.”“Exercise caution”
As for the provision which also permits arrest of the applicant without warrant once the anticipatory bail application is rejected or when no order is passed, the report, quoting a Supreme Court judgment, said: “The power of arrest is not to be exercised in a mechanical manner but with caution and circumspection. The mere fact that the bail application is rejected is no ground for directing the applicant’s immediate arrest.”
The Commission said: “There may be causes 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 therefore recommended omission of this clause.
Before the amendment was introduced, both the sessions court and the High Court had concurrent jurisdiction to entertain an anticipatory bail application under Section 438.
This was amended stating the power should be exercised by either the sessions court or the High Court. In order to streamline the procedure, the Commission has recommended insertion of a new provision in Section 438, on the lines of Section 397 (3), providing the applicant an option to choose either the court of sessions or the High Court.
But once the option is exercised, recourse to the other forum is barred for the same relief. However, all other existing remedies against such a final order will continue to be available. The Commission said, “This will take away much of the sting of lawyers’ objections to the amendment.”
Also, a final order on an anticipatory bail application would not be construed as an interlocutory order for purposes of the Cr.PC.
The report contains the text of revised Section 438 Cr.PC for consideration by the Centre.