ABA- (Anticipatory Bail Application)
Directions for grant of bail to person apprehending arrest (Section 438)
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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
2. When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--
i. a condition that the person shall make himself available for interrogation by a police officer as and when required;
ii. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
iii. a condition that the person shall not leave India without the previous permission of the Court;
iv. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
STATE AMENDMENTS - West Bengal:
To sub-section (1) of section 438 of the principal Act, the following proviso shall be added:---
"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven day’s notice to present its case.
[Vide West Bengal Act 47 of 1981, s. 3.]
West Bengal.--
For sub-section (1) of section 438, of the principal Act the following sub-sections shall be substituted, namely:-- (1)...
a. 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: Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.
b. The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application: Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case.
c. If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.
(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, tribunal or other authority.".
[Vide West Bengal Act 25 of 1990, s. 3.]
STATE AMENDMENT – Orissa:
Amendment of section 438.--In section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), to sub-section (1), the following proviso shall be added, namely:-
"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case.":
[Vide Orissa Act 11 of 1988, s. 2]
STATE AMENDMENT – Maharashtra:
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 giant 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 forth with 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 it 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 passing 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 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 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).]
[Vide Maharashtra Act 24 of 1993, s. 2]
STATE AMENDMENT – Uttar Pradesh:
Section 438 of the said Code shall be omitted. [Vide Uttar Pradesh Act 16 of 1976, s. 9]
Section 439. Special powers of High Court or Court of Session regarding bail.
1. A High Court or Court of Session may direct,--
a. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
b. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
2. A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
STATE AMENDMENT – Assam:
439-A. Power to grant bail.--(1) Notwithstanding anything contained in this Code, no person—
a. who, being accused or suspected of committing an offence under any of the following Sections, namely, ---Sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3, 4, 5 and 6 of the Indian Explosive Substances Act, 1908, and Sections 25,26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a court; or
b. who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of Sessions for a direction for his release on bail in the event of his arrest, shall be released on bail or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely: --
i. that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);
ii. that such person is under the age of sixteen years or a woman or a sick or an infirm person;
iii. that the court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail."
[Vide Assam Act 3 of 1984, s. 5.]
Section 440. Amount of bond and reduction thereof.
1. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.
