In a significant order, a bench comprising of Mridula Bhatkar, J has held that a court can adjourn hearing of anticipatory bail plea without granting interim protection from arrest to the accused. In the present case, the accused had approached the High Court after the sessions court refused to grant them interim relief from arrest and adjourned hearing of their plea seeking anticipatory bail. The Counsel for the appellant had argued that whenever an application seeking anticipatory bail is made under Section 438 of Code of Criminal Procedure (CrPC), the Trial Court shall either reject the said plea forthwith or issue an interim order in respect of anticipatory bail and no third option is open to the court to adjourn the application without granting any interim relief to the accused. The Court rejecting the arguments of the Counsel observed that the power of anticipatory bail needs to be carefully used as the court has to achieve balance between protection of liberty of an individual and the effective and unhampered investigation by the state machinery. Adjourning matter after passing the interim bail in favour of the accused may give setback to the investigating machinery to collect evidence and will push the victim and witnesses into a fearful trauma. There are crimes which go unreported only because the citizens do not feel safe and assured to come forward and give complaint as they have apprehension that the accused will go scot free or will be protected under law, the Court stated. Though in many cases, bail is said to be a rule, anticipatory bail cannot be a rule but is to be left to the cautious, judicious discretion of the judge depending on the facts of each case, the Court held.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.541 OF 2014
Shrenik Jayantilal Jain Vs. The State of Maharashtra
CORAM: MRS.MRIDULA BHATKAR, J.
DATE: MAY 8, 2014
1.
The learned Sessions Judge of Greater Mumbai, pending hearing of
Anticipatory Bail Application before it, refused to grant interim protection
by its order dated 19th April, 2014. Hence, this application is preferred
seeking interim bail, till the final decision on the Anticipatory Bail
Application 754 of 2014, which is pending before the learned Sessions
Judge.
2.
In the course of submissions, the following proposition was made:
“When an application for anticipatory bail under section 438 is
preferred, the Sessions Court or the High Court shall either reject
the said application forthwith or issue an interim order in respect of
without
granting
any
applicant/accused”.
3.
interim
relief
to
the
application
anticipatory bail. No third option is open to the Court to adjourn the
This proposition or the interpretation of section 438 of the Code by
the learned Counsel for the applicants gave rise to the question of law as
follows:
Whether the Sessions Court or the High Court, while entertaining an
application for anticipatory bail under section 438 of the Code of
Criminal Procedure, has a power to adjourn the said application
without granting interim protection in favour of the applicant/accused
or not?
4.
Before dealing with the legal submissions of the learned Counsel, it
is to be noted that section 438 of the Criminal Procedure Code was
enacted by the State of Maharashtra vide Act 24 of 1993 w.e.f. 28.7.1993,
thereby with provision of grant of interim relief under section 438 of the
Criminal Procedure Code.
Section 438 in the Central Act was also
amended in 2005, however, the amendment is not yet notified. The section
438 in Maharashtra amendment is hereby reproduced as follows:
2 / 18
“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 that 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, consider 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 an 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
subsection (1).”
(emphasis placed)
5.
The learned Counsel for the applicant/accused has submitted that
the language used in section 438 (1) specifying powers given to the Court
is imperative. After sub-clause (iv) of section 438(1), the words used are
“either reject the application forthwith or issue an interim order for the
grant of anticipatory bail”. Use of words “either” “or” give only two options
to the judge and it closes the third option to adjourn the matter without
passing any order. Therefore, when the application is submitted, the Court
needs either to reject it forthwith after considering the merit of the matter
or shall grant interim relief to the applicant. He submitted the words “Court
may” which is used above subsection (i) of section 438(1)(i) is to be read
as “shall”. Considering the object of granting interim power to the Court,
there is no other interpretation available but to accept this. The purpose of
this provision is to protect freedom of an individual which is very valuable.
Certain
Courts are required to take when interim order is passed.
He submitted that sub-clauses (ii) and (iii) lay down the steps that the
conditions are required to be imposed in the order and so also as per
subsection (3), the Court shall forthwith cause a notice of not less than 7
days to the Public Prosecutor and the Commissioner of Police to be given
a reasonable opportunity, when the application shall be finally heard by the
Court. This shows that grant of interim bail is obligatory for a Judge, if at
all he is not inclined to reject the said application.
While buttressing submissions the Counsel referred to the
6.
recommendations of the Law Commission, 203rd report, December 2007
on section 438 of the Code of Criminal Procedure. He relied on Chapter 3
which says about Legislative Changes, especially point No.3.3, sub-clause
2, wherein the effect of the proposed amendment to section 438 was
mentioned. Sub-clause (ii) reads as under:
(ii)
if the Court does not reject the application for the grant of
anticipatory bail, and makes an interim order of bail, it should,
forthwith give notice to the public prosecutor or Government
Advocate. The question of bail would then be re-examined in the
light of the respective contentions of the parties; and”
He referred to Chapter 6 – Analysis of the Amended Law and
Conclusions – especially,
clause 6.1.8 thereof, wherein the Law
Commission has taken a note that the Courts, as a matter of practice,
ordinarily pass interim order in the first instance and then the same is
confirmed or recalled or canceled after hearing the Public Prosecutor. He
argued, the proviso to section 438(i) which states that where interim bail
order is not passed and the application for anticipatory bail is rejected,
then, it shall be open to the officer in charge to arrest the accused without
warrant. This proviso is an explanation of the two options given by the
Code to the Court either to grant interim relief or to reject the application.
The learned Counsel submitted that the crux of the arguments is that the
proviso is not a rider to section 438(i) and does not create a third
possibility of keeping the matter pending without passing any order. In
support of the submissions, he relied on clause 6.2.10 wherein the Law
Commission has stated that the “proviso is more of clarification nature and
it is not by way of exception to subsection (i) of section 438. It only seeks
to clarify whether there is any embargo on the police power to arrest the
applicant/petitioner on whose Anticipatory Bail Application, either no
interim order has been passed or whose application for direction under
subsection (1) has been rejected. The proviso declares that there will not
be any embargo and it will be open to the police to arrest such a person, if
such an arrest is otherwise considered necessary in a given case. The
proviso, however, does not say that the police must necessarily arrest the
person in the situation envisaged therein.”
Learned Counsel submitted that this issue is not res integra and the
7.
Bombay High Court time and again has taken the same view while
entertaining application under section 438 of the Criminal Procedure
Code. He relied on the judgments in -
(i) State of Maharashtra vs. Kachrusingh Santaramsingh,1
(ii) Pradeep Pushpankant Goragandhi vs. State of Maharashtra2;
(iii) Rais Shaikh vs. The State of Maharashtra3;
ig
(iv) Sandeep Sabarwal vs. The State of Maharashtra4;
(v) Mehndi Virani vs. The State of Maharashtra & Ors.5; and
(vi) Ashok Jairam Bhojane vs. State of Maharashtra6.
The learned APP and the learned Counsel for the Complainant have
8.
opposed the application and it was argued that in some offences when
short notice of a day is given to the Prosecutor and it is not possible to
contact and get instructions from the concerned Investigating Officer, then
grant of interim protection to the accused in serious cases will amount to
miscarriage of justice and may hamper investigation to a great extent. It
may cause tampering or destruction of the evidence and, therefore, the
power of the Court to adjourn the matter without either granting
1
2
3
4
5
6
1994 3 BomCR 348
Cr.Application No.6592 of 2005 decided on 5.10.2005
Anticipatory Bail Application No.753 of 2011 decided on 30.8.2011
Cr. Anticipatory Bail Application No.724 of 2013 decided 9.7.2013
2010 ALL MR (CRI) 2470
Criminal Application No.15 of 2012 decided on 27.3.2012
anticipatory bail or rejecting the same forthwith is not taken away under
bail without either rejecting or granting interim relief.
the section and the Court can simply adjourn the application for pre-arrest
9.
The object and spirit of section 438 is to protect the liberty of an
individual, who is falsely implicated or who is forced to face the disgrace.
The section is very precious as it safeguards the freedom of an individual
against the unwarranted arrest. It is a unique provision. These are the
ig
extra-ordinary powers given to the Court against the warrant and therefore
they are to be used cautiously. The application for anticipatory bail is
required to be disposed of without any delay. When the application is
filed, the Court needs to be quick in taking decision. When it is a very bad
case for the accused and his custodial interrogation is a must for
investigation, the Court shall reject the anticipatory bail forthwith. After
going through the application, the Court may find that involvement of the
applicant/accused may be false or the offence was not so grave and
without his custody, investigation may proceed, may grant interim bail and
fix the application for final disposal.
10.
A third contingency is when the Judge thinks that to reject the
application forthwith may cause injustice to the accused.
However, to
grant interim bail at that stage, may spoil the investigation. It may have a
bad impact on the complainant and the witnesses and they may be
discouraged or terrorised, and the Court is not in a position to take
decision immediately and needs more details of investigation then in the
fitness of circumstances, the Court can simply adjourn the matter.
Admittedly, this third option is not mentioned in section 438 of the Criminal
Procedure Code. The submissions of the learned Counsel Mr.Ponda that
as only two types of orders are mentioned under section 438 (1), so the
The Court is always equipped with a power to adjourn the
acceptable.
Court has no power to adjourn the matter simpliciter, are not at all
matter for reasonable period. Reading section 438 that the Court is
ceased of this power under the section is erroneous. The phrase “either
or” under section 438 is not used to exclude the third possibility but the
terminology creates two enabling situations in which the Court may pass
order. It is not mandatory for the Court to decide immediately this way or
that way.
The submissions of the learned Counsel may appear
convincing; however, on a close scrutiny of the words used in the section
and especially in the proviso and the context in which the words are used,
it does not stand to reason.
The word “either reject the application
forthwith or issue an interim order for grant of anticipatory bail” is to be
read with its subject and the verb which precedes and also proviso. The
relevant portion of subsection (1) of section 438 states –
“438. ...(1) ..... and that the Court may, after taking into
consideration inter alia, the following factors:-
(i) ....
(ii) ....
(iii)....
(iv)....
either reject the application forth with or issue an interim order for
the grant of anticipatory bail:
(emphasis placed)
Thus, the verb i.e., “Court may” cannot be disjuncted from the phrase
“either reject.....”. The verb “may” gives discretion to the Court to pass the
order either way. However, it implies discretion to the Court which is not
restricted to only two options but to adjourn simpliciter the application is
also available.
11.
The submissions of the learned Counsel that the verb “may” carries
force of mandate. That it is to be read as “shall”, cannot be accepted as to
grant anticipatory bail or reject. It is a discretionary power of the Court
and it cannot be restricted to only two options obliterating power to
adjourn. Taking into account the practice of the Courts of granting interim
protection, the said provision of power to grant interim bail is enacted by
the
State
of
Maharasthra.
Thereby
the
said
power
is
legally
acknowledged.
12.
It is the settled position of law that the use of word “may”, which is
an auxiliary verb will not prevent the Court from giving it the effect of
mandate or obligation. However, it depends on the object of the statute.
The word “may” in a statute would not by itself indicate that the provision
is directory in nature. It involves discretion coupled with an obligation.
Thus, the word “may” whether to be read as “shall”, depends on the
intention of the Legislature and it is not to be taken that once the word
The power of anticipatory bail being an extraordinary power, vests
13.
“may” is used, it, per se, would be directory.
with the higher judiciary. It is to be carefully used as the Court has to
achieve balance between the protection of the liberty of an individual and
the effective and unhampered investigation by the State machinery.
Therefore, though in many cases, bail is said to be a rule, anticipatory bail
cannot be a rule but it is left to the cautious, judicious discretion by the
judge depending on the facts of each case. Undoubtedly it is a duty of the
criminal Court to uphold and vindicate the liberty of an individual and
prevent unwarranted arrest. Hence, adjourning matter without passing
any order of granting interim bail will deliberately cause prejudice to the
accused. However, the order adjourning matter after passing the interim
bail in favour of the accused may give setback to the investigating
machinery to collect evidence and will push the victim and witnesses into
a fearful trauma. There are crimes which go unreported only because the
citizens do not feel safe and assured to come forward and give complaint
as they have apprehension that the accused will go scotfree or will be
protected under law. On the other hand wherein rejection of the
anticipatory bail is forthwith, it may prejudice or be unjust to the accused.
Thus, when a case cannot be classified as black and white but there is a
grey area or borderline case which needs some time for a Judge to get the
correct picture, though prima facie, to decide fairly the application for pre-
14.
arrest bail.
It was strenuously argued that proviso supports the submissions
made by the learned Counsel. It is not a rider but a clarification. It is true
that the proviso in fact clarifies the issue before this Court by confirming
interpretation that the Court may simply adjourn the application neither
rejecting nor granting interim order. Proviso to section 438(1) is truly a
crux of the matter. It answers the point raised by the learned Counsel.
The Law Commission in its 203rd report, in clause No.6.1.10 has stated
that the proviso is explanatory and it explains that if the anticipatory bail is
rejected and no interim order is passed, then it shall be open to an officer
in charge of the police station to arrest the applicant without warrant. It is
further clarified that it is not mandatory. The word “shall” used in the
proviso is not a mandate expressed by the legislation that it is binding on
the police officer to arrest. The police may not arrest the person if they
15.
really don't need it.
The said proviso, if carefully read, lays down two situations - (i) if
the Court has not passed any interim order under this subsection, then the
police can arrest; (ii) if anticipatory bail is rejected, then the police can
arrest. These two clauses are joined with conjecture “or”. The Legislature
has not used the word “and”. Had the word “and” been used, then that
would have been only one situation. That means not granting interim
order should have been necessarily followed by rejection of anticipatory
bail. Therefore, the word “or” is very significant, deliberate, meaningful,
If anticipatory bail is
and it indicates undoubtedly the two situations.
rejected, then, the police has no bar in arresting the applicant. However,
when the Court has not passed any interim order, then also police under
that circumstance, can arrest the accused. Thus, not granting interim bail
is an independent circumstance. Thus, denial of an interim relief without
any order of rejection of the application is unconnected circumstance other
than the rejection of bail. Thus, refusal to grant interim order does not
necessarily entail a rejection. Hence there may not be a rejection and
interim bail is not granted; in that situation also, the police can arrest the
applicant/accused.
16.
It was submitted that how long such adjournments can be granted
and how long the applicant/accused be kept waiting for justice.
Uncertainty is a greatest vice in the process of justice. An application of
pre-arrest bail cannot be kept pending for a long time. At the earliest a
decision in the matter is required; either he is protected or his application
is rejected informed to him. Thus, having the third option open i.e., to
simply adjourn a matter without passing any order in an Anticipatory Bail
Application though is very much available to a judge such application is
not to be adjourned for long time if no interim relief is granted.
It is
expected that it is to be expeditiously decided and, therefore, as a matter
of prudence, the matter can be adjourned for final disposal without giving
interim protection at the most for 2 to 3 days.
17.
I am aware that not to grant interim bail will compel the applicant to
to hide from the police during that period till his matter is decided finally.
However, we cannot ignore the ground realities that when the application
for anticipatory bail is made, the said accused does not remain present in
the Court unless he is given interim protection and he is not available to
the police. Under such circumstances, interpreting the provision of section
438(1) that by way of amendment, the Court has no power to adjourn the
matter but to pass orders only either to grant or reject, is not the correct
interpretation.
18.
In Civil Procedure Code, under Order XVII there is a specific
provision for adjournment. Similarly, in Chapter XXIV of the Criminal
Procedure Code, which pertains to “General Provisions as to Inquiries and
Trials”, section 309 is about power to postpone or adjourn every inquiry or
trial but it is to be heard expeditiously. Section 309(2) empowers the Court
to postpone or adjourn any enquiry from time to time for reasons to be
In
State of Maharashtra vs. Kachrusingh Santaramsingh
19.
recorded.
(supra), in paragraph 6 therein, it was held that as per sub-section (1), the
Court may either reject the application forthwith or issue an order for grant
of anticipatory bail and in circumstances which may exist when it may not
be possible for the Court to arrive at such a decision forthwith, then in
such cases, it might become necessary to adjourn the hearing of the case
to some future date. The three contingencies are laid down either in the
form of grant of anticipatory bail; rejection of anticipatory bail and interim
order of protection. However, it does not say specifically that Court has no
power to adjourn it without passing any order. Hence, it is distinguishable.
20.
The judgments in Pradeep Pushpakant Goragandhi (supra) and
Rais Shaikh (supra) and Sandeep Sabarwal (supra) do not lay down
any ratio on this point. In the unreported judgment in the case of Pradeep
Pushpankant Goragandhi vs. State of Maharashtra (supra), a learned
Single Judge of this Court (Coram: A.S. Oka, J.) has held in paragraph 3
thus:
“3.
This Court has already taken a view that if the learned
Sessions Judge is not inclined to grant ad-interim relief pending the
application for anticipatory bail, the proper course will be to reject
the application for anticipatory bail. This Court has already
deprecated the practice of rejecting the prayer for ad-interim relief
made in the application for anticipatory bail and keeping the main
application for anticipatory bail pending.”
However, law is not discussed in respect of the bar on Court's power to
adjourn without passing any order. The prosecutor has also not opposed
the application. Therefore, it cannot be said that the ratio is laid down in
the said judgment.
21.
In the case of Rais Shaikh vs. The State of Maharashtra (supra),
the learned Single Judge of this Court (Coram: Roshan Dalvi, J.) has
relied on the judgment in the case of Pradeep Pushpankant Goragandhi
vs. State of Maharashtra (supra) and while disposing of the Anticipatory
Bail Application, gave interim relief to the applicant and directed the
applicant to appear before the concerned Court.
22.
In Sandeep Sabarwal vs. The State of Maharashtra (supra), a
learned Single Judge of this Court (Coram: R.P. Sondurbaldota, J.)
disposed of the application on the statement of the Prosecutor that the
applicant will not be arrested till the matter was disposed of by the
23.
Sessions Court.
In the case of Mehndi Virani vs. The State of Maharashtra & Ors.
(supra), the learned Judge (Coram: J.H. Bhatia, J.), held thus:
“4.
Section 438 of the Criminal Procedure Code makes a
provision for grant of bail in anticipation of arrest for non-bailable
offence by the High Court or the Court of Sessions. The Court may,
after taking into consideration, the nature and gravity of the
accusation, the antecedents of the applicant, the possibility of the
applicant to flee from justice, and where the accusation has been
made with the object of injuring or humiliating the applicant by
having him so arrested, that Court may, either reject the application
or grant anticipatory bail. It may also pass interim order for grant of
anticipatory bail with certain conditions. Once, anticipatory bail is
granted such person on being arrested has to be released on bail.”
In the case of Ashok Jairam Bhojane vs. State of Maharashtra
24.
(supra), this Court (Coram: A.P. Bhangale, J.) had canceled the
anticipatory bail granted to the accused/respondent Nos.2 to 4 therein, as
the ad-interim anticipatory bail was granted to the accused without hearing
Public Prosecutor and then confirmed accordingly.
25.
Thus, these judgments are distinguishable as this issue was not
discussed. With this, I conclude that a Judge may either pass interim
order or may reject the application forthwith or may adjourn the matter
only for a short period without passing any order. In the present matter,
the application for final hearing is pending and it is fixed on 9 th May, 2014
I have already granted interim bail to the
before the Sessions Court.
applicant/accused, till today. So it is extended by one day and the learned
Sessions Judge is expected to decide the said application finally on
9th May, 2014. If the application is not decided on that day, the interim
protection may be continued till final hearing of the said application.
In view of the above, the application is disposed of.
26.
(MRS.MRIDULA BHATKAR, J.)
DATE: MAY 8, 2014
1.
The learned Sessions Judge of Greater Mumbai, pending hearing of
Anticipatory Bail Application before it, refused to grant interim protection
by its order dated 19th April, 2014. Hence, this application is preferred
seeking interim bail, till the final decision on the Anticipatory Bail
Application 754 of 2014, which is pending before the learned Sessions
Judge.
2.
In the course of submissions, the following proposition was made:
“When an application for anticipatory bail under section 438 is
preferred, the Sessions Court or the High Court shall either reject
the said application forthwith or issue an interim order in respect of
without
granting
any
applicant/accused”.
3.
interim
relief
to
the
application
anticipatory bail. No third option is open to the Court to adjourn the
This proposition or the interpretation of section 438 of the Code by
the learned Counsel for the applicants gave rise to the question of law as
follows:
Whether the Sessions Court or the High Court, while entertaining an
application for anticipatory bail under section 438 of the Code of
Criminal Procedure, has a power to adjourn the said application
without granting interim protection in favour of the applicant/accused
or not?
4.
Before dealing with the legal submissions of the learned Counsel, it
is to be noted that section 438 of the Criminal Procedure Code was
enacted by the State of Maharashtra vide Act 24 of 1993 w.e.f. 28.7.1993,
thereby with provision of grant of interim relief under section 438 of the
Criminal Procedure Code.
Section 438 in the Central Act was also
amended in 2005, however, the amendment is not yet notified. The section
438 in Maharashtra amendment is hereby reproduced as follows:
2 / 18
“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 that 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, consider 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 an 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
subsection (1).”
(emphasis placed)
5.
The learned Counsel for the applicant/accused has submitted that
the language used in section 438 (1) specifying powers given to the Court
is imperative. After sub-clause (iv) of section 438(1), the words used are
“either reject the application forthwith or issue an interim order for the
grant of anticipatory bail”. Use of words “either” “or” give only two options
to the judge and it closes the third option to adjourn the matter without
passing any order. Therefore, when the application is submitted, the Court
needs either to reject it forthwith after considering the merit of the matter
or shall grant interim relief to the applicant. He submitted the words “Court
may” which is used above subsection (i) of section 438(1)(i) is to be read
as “shall”. Considering the object of granting interim power to the Court,
there is no other interpretation available but to accept this. The purpose of
this provision is to protect freedom of an individual which is very valuable.
Certain
Courts are required to take when interim order is passed.
He submitted that sub-clauses (ii) and (iii) lay down the steps that the
conditions are required to be imposed in the order and so also as per
subsection (3), the Court shall forthwith cause a notice of not less than 7
days to the Public Prosecutor and the Commissioner of Police to be given
a reasonable opportunity, when the application shall be finally heard by the
Court. This shows that grant of interim bail is obligatory for a Judge, if at
all he is not inclined to reject the said application.
While buttressing submissions the Counsel referred to the
6.
recommendations of the Law Commission, 203rd report, December 2007
on section 438 of the Code of Criminal Procedure. He relied on Chapter 3
which says about Legislative Changes, especially point No.3.3, sub-clause
2, wherein the effect of the proposed amendment to section 438 was
mentioned. Sub-clause (ii) reads as under:
(ii)
if the Court does not reject the application for the grant of
anticipatory bail, and makes an interim order of bail, it should,
forthwith give notice to the public prosecutor or Government
Advocate. The question of bail would then be re-examined in the
light of the respective contentions of the parties; and”
He referred to Chapter 6 – Analysis of the Amended Law and
Conclusions – especially,
clause 6.1.8 thereof, wherein the Law
Commission has taken a note that the Courts, as a matter of practice,
ordinarily pass interim order in the first instance and then the same is
confirmed or recalled or canceled after hearing the Public Prosecutor. He
argued, the proviso to section 438(i) which states that where interim bail
order is not passed and the application for anticipatory bail is rejected,
then, it shall be open to the officer in charge to arrest the accused without
warrant. This proviso is an explanation of the two options given by the
Code to the Court either to grant interim relief or to reject the application.
The learned Counsel submitted that the crux of the arguments is that the
proviso is not a rider to section 438(i) and does not create a third
possibility of keeping the matter pending without passing any order. In
support of the submissions, he relied on clause 6.2.10 wherein the Law
Commission has stated that the “proviso is more of clarification nature and
it is not by way of exception to subsection (i) of section 438. It only seeks
to clarify whether there is any embargo on the police power to arrest the
applicant/petitioner on whose Anticipatory Bail Application, either no
interim order has been passed or whose application for direction under
subsection (1) has been rejected. The proviso declares that there will not
be any embargo and it will be open to the police to arrest such a person, if
such an arrest is otherwise considered necessary in a given case. The
proviso, however, does not say that the police must necessarily arrest the
person in the situation envisaged therein.”
Learned Counsel submitted that this issue is not res integra and the
7.
Bombay High Court time and again has taken the same view while
entertaining application under section 438 of the Criminal Procedure
Code. He relied on the judgments in -
(i) State of Maharashtra vs. Kachrusingh Santaramsingh,1
(ii) Pradeep Pushpankant Goragandhi vs. State of Maharashtra2;
(iii) Rais Shaikh vs. The State of Maharashtra3;
ig
(iv) Sandeep Sabarwal vs. The State of Maharashtra4;
(v) Mehndi Virani vs. The State of Maharashtra & Ors.5; and
(vi) Ashok Jairam Bhojane vs. State of Maharashtra6.
The learned APP and the learned Counsel for the Complainant have
8.
opposed the application and it was argued that in some offences when
short notice of a day is given to the Prosecutor and it is not possible to
contact and get instructions from the concerned Investigating Officer, then
grant of interim protection to the accused in serious cases will amount to
miscarriage of justice and may hamper investigation to a great extent. It
may cause tampering or destruction of the evidence and, therefore, the
power of the Court to adjourn the matter without either granting
1
2
3
4
5
6
1994 3 BomCR 348
Cr.Application No.6592 of 2005 decided on 5.10.2005
Anticipatory Bail Application No.753 of 2011 decided on 30.8.2011
Cr. Anticipatory Bail Application No.724 of 2013 decided 9.7.2013
2010 ALL MR (CRI) 2470
Criminal Application No.15 of 2012 decided on 27.3.2012
anticipatory bail or rejecting the same forthwith is not taken away under
bail without either rejecting or granting interim relief.
the section and the Court can simply adjourn the application for pre-arrest
9.
The object and spirit of section 438 is to protect the liberty of an
individual, who is falsely implicated or who is forced to face the disgrace.
The section is very precious as it safeguards the freedom of an individual
against the unwarranted arrest. It is a unique provision. These are the
ig
extra-ordinary powers given to the Court against the warrant and therefore
they are to be used cautiously. The application for anticipatory bail is
required to be disposed of without any delay. When the application is
filed, the Court needs to be quick in taking decision. When it is a very bad
case for the accused and his custodial interrogation is a must for
investigation, the Court shall reject the anticipatory bail forthwith. After
going through the application, the Court may find that involvement of the
applicant/accused may be false or the offence was not so grave and
without his custody, investigation may proceed, may grant interim bail and
fix the application for final disposal.
10.
A third contingency is when the Judge thinks that to reject the
application forthwith may cause injustice to the accused.
However, to
grant interim bail at that stage, may spoil the investigation. It may have a
bad impact on the complainant and the witnesses and they may be
discouraged or terrorised, and the Court is not in a position to take
decision immediately and needs more details of investigation then in the
fitness of circumstances, the Court can simply adjourn the matter.
Admittedly, this third option is not mentioned in section 438 of the Criminal
Procedure Code. The submissions of the learned Counsel Mr.Ponda that
as only two types of orders are mentioned under section 438 (1), so the
The Court is always equipped with a power to adjourn the
acceptable.
Court has no power to adjourn the matter simpliciter, are not at all
matter for reasonable period. Reading section 438 that the Court is
ceased of this power under the section is erroneous. The phrase “either
or” under section 438 is not used to exclude the third possibility but the
terminology creates two enabling situations in which the Court may pass
order. It is not mandatory for the Court to decide immediately this way or
that way.
The submissions of the learned Counsel may appear
convincing; however, on a close scrutiny of the words used in the section
and especially in the proviso and the context in which the words are used,
it does not stand to reason.
The word “either reject the application
forthwith or issue an interim order for grant of anticipatory bail” is to be
read with its subject and the verb which precedes and also proviso. The
relevant portion of subsection (1) of section 438 states –
“438. ...(1) ..... and that the Court may, after taking into
consideration inter alia, the following factors:-
(i) ....
(ii) ....
(iii)....
(iv)....
either reject the application forth with or issue an interim order for
the grant of anticipatory bail:
(emphasis placed)
Thus, the verb i.e., “Court may” cannot be disjuncted from the phrase
“either reject.....”. The verb “may” gives discretion to the Court to pass the
order either way. However, it implies discretion to the Court which is not
restricted to only two options but to adjourn simpliciter the application is
also available.
11.
The submissions of the learned Counsel that the verb “may” carries
force of mandate. That it is to be read as “shall”, cannot be accepted as to
grant anticipatory bail or reject. It is a discretionary power of the Court
and it cannot be restricted to only two options obliterating power to
adjourn. Taking into account the practice of the Courts of granting interim
protection, the said provision of power to grant interim bail is enacted by
the
State
of
Maharasthra.
Thereby
the
said
power
is
legally
acknowledged.
12.
It is the settled position of law that the use of word “may”, which is
an auxiliary verb will not prevent the Court from giving it the effect of
mandate or obligation. However, it depends on the object of the statute.
The word “may” in a statute would not by itself indicate that the provision
is directory in nature. It involves discretion coupled with an obligation.
Thus, the word “may” whether to be read as “shall”, depends on the
intention of the Legislature and it is not to be taken that once the word
The power of anticipatory bail being an extraordinary power, vests
13.
“may” is used, it, per se, would be directory.
with the higher judiciary. It is to be carefully used as the Court has to
achieve balance between the protection of the liberty of an individual and
the effective and unhampered investigation by the State machinery.
Therefore, though in many cases, bail is said to be a rule, anticipatory bail
cannot be a rule but it is left to the cautious, judicious discretion by the
judge depending on the facts of each case. Undoubtedly it is a duty of the
criminal Court to uphold and vindicate the liberty of an individual and
prevent unwarranted arrest. Hence, adjourning matter without passing
any order of granting interim bail will deliberately cause prejudice to the
accused. However, the order adjourning matter after passing the interim
bail in favour of the accused may give setback to the investigating
machinery to collect evidence and will push the victim and witnesses into
a fearful trauma. There are crimes which go unreported only because the
citizens do not feel safe and assured to come forward and give complaint
as they have apprehension that the accused will go scotfree or will be
protected under law. On the other hand wherein rejection of the
anticipatory bail is forthwith, it may prejudice or be unjust to the accused.
Thus, when a case cannot be classified as black and white but there is a
grey area or borderline case which needs some time for a Judge to get the
correct picture, though prima facie, to decide fairly the application for pre-
14.
arrest bail.
It was strenuously argued that proviso supports the submissions
made by the learned Counsel. It is not a rider but a clarification. It is true
that the proviso in fact clarifies the issue before this Court by confirming
interpretation that the Court may simply adjourn the application neither
rejecting nor granting interim order. Proviso to section 438(1) is truly a
crux of the matter. It answers the point raised by the learned Counsel.
The Law Commission in its 203rd report, in clause No.6.1.10 has stated
that the proviso is explanatory and it explains that if the anticipatory bail is
rejected and no interim order is passed, then it shall be open to an officer
in charge of the police station to arrest the applicant without warrant. It is
further clarified that it is not mandatory. The word “shall” used in the
proviso is not a mandate expressed by the legislation that it is binding on
the police officer to arrest. The police may not arrest the person if they
15.
really don't need it.
The said proviso, if carefully read, lays down two situations - (i) if
the Court has not passed any interim order under this subsection, then the
police can arrest; (ii) if anticipatory bail is rejected, then the police can
arrest. These two clauses are joined with conjecture “or”. The Legislature
has not used the word “and”. Had the word “and” been used, then that
would have been only one situation. That means not granting interim
order should have been necessarily followed by rejection of anticipatory
bail. Therefore, the word “or” is very significant, deliberate, meaningful,
If anticipatory bail is
and it indicates undoubtedly the two situations.
rejected, then, the police has no bar in arresting the applicant. However,
when the Court has not passed any interim order, then also police under
that circumstance, can arrest the accused. Thus, not granting interim bail
is an independent circumstance. Thus, denial of an interim relief without
any order of rejection of the application is unconnected circumstance other
than the rejection of bail. Thus, refusal to grant interim order does not
necessarily entail a rejection. Hence there may not be a rejection and
interim bail is not granted; in that situation also, the police can arrest the
applicant/accused.
16.
It was submitted that how long such adjournments can be granted
and how long the applicant/accused be kept waiting for justice.
Uncertainty is a greatest vice in the process of justice. An application of
pre-arrest bail cannot be kept pending for a long time. At the earliest a
decision in the matter is required; either he is protected or his application
is rejected informed to him. Thus, having the third option open i.e., to
simply adjourn a matter without passing any order in an Anticipatory Bail
Application though is very much available to a judge such application is
not to be adjourned for long time if no interim relief is granted.
It is
expected that it is to be expeditiously decided and, therefore, as a matter
of prudence, the matter can be adjourned for final disposal without giving
interim protection at the most for 2 to 3 days.
17.
I am aware that not to grant interim bail will compel the applicant to
to hide from the police during that period till his matter is decided finally.
However, we cannot ignore the ground realities that when the application
for anticipatory bail is made, the said accused does not remain present in
the Court unless he is given interim protection and he is not available to
the police. Under such circumstances, interpreting the provision of section
438(1) that by way of amendment, the Court has no power to adjourn the
matter but to pass orders only either to grant or reject, is not the correct
interpretation.
18.
In Civil Procedure Code, under Order XVII there is a specific
provision for adjournment. Similarly, in Chapter XXIV of the Criminal
Procedure Code, which pertains to “General Provisions as to Inquiries and
Trials”, section 309 is about power to postpone or adjourn every inquiry or
trial but it is to be heard expeditiously. Section 309(2) empowers the Court
to postpone or adjourn any enquiry from time to time for reasons to be
In
State of Maharashtra vs. Kachrusingh Santaramsingh
19.
recorded.
(supra), in paragraph 6 therein, it was held that as per sub-section (1), the
Court may either reject the application forthwith or issue an order for grant
of anticipatory bail and in circumstances which may exist when it may not
be possible for the Court to arrive at such a decision forthwith, then in
such cases, it might become necessary to adjourn the hearing of the case
to some future date. The three contingencies are laid down either in the
form of grant of anticipatory bail; rejection of anticipatory bail and interim
order of protection. However, it does not say specifically that Court has no
power to adjourn it without passing any order. Hence, it is distinguishable.
20.
The judgments in Pradeep Pushpakant Goragandhi (supra) and
Rais Shaikh (supra) and Sandeep Sabarwal (supra) do not lay down
any ratio on this point. In the unreported judgment in the case of Pradeep
Pushpankant Goragandhi vs. State of Maharashtra (supra), a learned
Single Judge of this Court (Coram: A.S. Oka, J.) has held in paragraph 3
thus:
“3.
This Court has already taken a view that if the learned
Sessions Judge is not inclined to grant ad-interim relief pending the
application for anticipatory bail, the proper course will be to reject
the application for anticipatory bail. This Court has already
deprecated the practice of rejecting the prayer for ad-interim relief
made in the application for anticipatory bail and keeping the main
application for anticipatory bail pending.”
However, law is not discussed in respect of the bar on Court's power to
adjourn without passing any order. The prosecutor has also not opposed
the application. Therefore, it cannot be said that the ratio is laid down in
the said judgment.
21.
In the case of Rais Shaikh vs. The State of Maharashtra (supra),
the learned Single Judge of this Court (Coram: Roshan Dalvi, J.) has
relied on the judgment in the case of Pradeep Pushpankant Goragandhi
vs. State of Maharashtra (supra) and while disposing of the Anticipatory
Bail Application, gave interim relief to the applicant and directed the
applicant to appear before the concerned Court.
22.
In Sandeep Sabarwal vs. The State of Maharashtra (supra), a
learned Single Judge of this Court (Coram: R.P. Sondurbaldota, J.)
disposed of the application on the statement of the Prosecutor that the
applicant will not be arrested till the matter was disposed of by the
23.
Sessions Court.
In the case of Mehndi Virani vs. The State of Maharashtra & Ors.
(supra), the learned Judge (Coram: J.H. Bhatia, J.), held thus:
“4.
Section 438 of the Criminal Procedure Code makes a
provision for grant of bail in anticipation of arrest for non-bailable
offence by the High Court or the Court of Sessions. The Court may,
after taking into consideration, the nature and gravity of the
accusation, the antecedents of the applicant, the possibility of the
applicant to flee from justice, and where the accusation has been
made with the object of injuring or humiliating the applicant by
having him so arrested, that Court may, either reject the application
or grant anticipatory bail. It may also pass interim order for grant of
anticipatory bail with certain conditions. Once, anticipatory bail is
granted such person on being arrested has to be released on bail.”
In the case of Ashok Jairam Bhojane vs. State of Maharashtra
24.
(supra), this Court (Coram: A.P. Bhangale, J.) had canceled the
anticipatory bail granted to the accused/respondent Nos.2 to 4 therein, as
the ad-interim anticipatory bail was granted to the accused without hearing
Public Prosecutor and then confirmed accordingly.
25.
Thus, these judgments are distinguishable as this issue was not
discussed. With this, I conclude that a Judge may either pass interim
order or may reject the application forthwith or may adjourn the matter
only for a short period without passing any order. In the present matter,
the application for final hearing is pending and it is fixed on 9 th May, 2014
I have already granted interim bail to the
before the Sessions Court.
applicant/accused, till today. So it is extended by one day and the learned
Sessions Judge is expected to decide the said application finally on
9th May, 2014. If the application is not decided on that day, the interim
protection may be continued till final hearing of the said application.
In view of the above, the application is disposed of.
26.
(MRS.MRIDULA BHATKAR, J.)
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