Judgment:
Jayachandra Reddy, J.
1. The short question, which is of general importance that arises for our consideration is whether under S. 438 of the Cr. P. C. 1973 the High Court or the Session s Court has power to grant anticipatory bail to a person after the competent criminal court has taken cognizance of the case and has issued process, viz., warrant for arrest of that person.
2. A Division Bench consisting of Jeevan Reddy J., and Upendralal Waghray, J. Disagreed with the view taken by an earlier Division Bench of this court consisting of Chennakesav Reddy J., as he then was and Rama Rao J., in Kamalakara Rao v. State of A. P. (1983) 1 APLJ 97 : (1983 Cri LJ 872) and consequently referred the question to the Full Bench. Before we proceed to consider the scope of S. 438, Cr. P. C., and several points urged, it is necessary to set out a few more details as to how this matter has come up before us. To start with, Madhusudan Rao, J., in N. Dasaratha Reddy v. State, (1975) 2 APLJ (HC) 214 held that S. 438, Cr. 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 Kamalakara Rao's case (supra) requires reconsideration, and accordingly referred the matter to the Division Bench. The Division Bench as mentioned above disagreed with the view taken in Kamalakara Rao's case (supra), and therefore on a reference the matter has come up before this Full Bench. It can, therefore, be seen that the difference of judicial opinion, to put it in other words, is on the short question whether the power to grant anticipatory bail under S. 438, Cr. P. C., comes to an end after the Magistrate has taken cognizance of an offence and issued process against the accused.
3. Section 438, Cr. P. C., was introduced for the first time in the new Cr. P. C. 1973 and provides for the issuance of a direction for the grant of bail to a person who apprehends arrest. The Section reads thus :-
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 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-sec. (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-sec. (3) of S. 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 issue in the 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 purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and them apply for bail. We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following drafts of a new section is placed for consideration.
'497 A. (1) When any person has a reasonable apprehension that he would 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 court may, in its discretion, direct that in the even t of his arrest, he shall be released on bail.
(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under S. 204(1), either issue summons or a bailable warrant as indicated in the direction of the court under sub-sec. (1).
(3) If any person in respect of whom such a direction is made is arrested without warrant b an officer-in-charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail'.
We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions and, moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the Court and prefer not to fetter such discretion in the statutory provision itself Superior courts will, undoubtedly, exercise their discretion properly, and not make and observation in the order granting anticipatory 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 : 1980CriLJ1125 . 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, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Ss. 437 and 439, S. 438(1) uses the language that the High Court or the Court of Session 'may if it thinks fit' direct that the applicant be released on bail........ It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the even of arrest. That is the stage at which it is imperative to potect his freedom in so far as one may, and to give full play to the presumption that he is innocent. In fact the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in S. 437'.
In particular the Supreme Court has held that the legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipator bail, but also observed that the power of granting anticipatory bail is somewhat extraordinary in character and is to be exercised only in exceptional cases. But the present controversy did not arise and was not considered by the Supreme Court. We shall now examine the various decision cited before us, both for and against.
6. In Dasaratha Reddy v. State (1975-2 APLJ (HC) 214) (supra) Madhusudhan Rao J. Held.
'The court's process must be respected first before any one can seek the aid of a court. If there is a warrant for the arrest of a person, such person may submit himself to arrest or may himself appear before the court and seek bail under S. 437. Section 438 applies only to arrests while the Court's process has not been issued. That is clear if S. 438(3) is read along with S. 438(1)'.
As mentioned above, Ramachandra Raju, J 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, 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 a 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 not survive the initiation of proceedings by filing charge-sheet and issue of arrest warrant. In the absence of provision of cancellation or withdrawal of warrant the situation of parallel exercise of power arises when the order under S. 438 is passed subsequent to issue of warrant. The essence of S. 438(3) is that the Magistrate has to vary the warrant if the proceedings commence after the order is passed under S. 438(1) and the terminal of the exercise of power under S. 438 is the initiation of proceedings under Cr. P. C., by the Magistrate'.
7. It can thus be seen that both Madhusudhan Rao, J., as well as the Division Bench in Kamalakara Rao's case (supra), laid considerable stress on sub-sec. (3) of S. 438. After a careful consideration of the scope and object of S. 438, we are unable to agree with the view taken by the Division Bench in Kamalakara Rao's case (1983) 1 APLJ 97 : (1983 Cri LJ 872) cited. Under S. 438(1) a person who reasonably believes that he may be arrested moves the court for anticipatory bail and if the court being satisfied grants bail to him, may also impose some conditions as mentioned in sub-sec (2). Then in the case of his arrest by an officer-in-charge of a police station sub-sec. (3) comes into operation and provides for the necessary procedure. It lays down that if such a person is thereafter arrested without warrant by an officer and if he is prepared to give bail, he shall be released on bail and if the Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance, he shall issue a bailable warrant in conformity with the directions of the court under sub-sec. (1). Sub-sec. (3) therefore does not in effect curtail the powers under sub-sec. (1) of S. 438 and it makes only a provision for a situation where anticipatory bail is granted under S. 438(1) and where an arrest is made thereafter by the police officer without warrant prior to the Magistrate taking cognizance but before the issue of process. IN Gurbaksh Singh's case (1980 Cri LJ 1125) (SC) (supra) the Supreme Court held that an anticipatory bail can be granted even after the F. I. R., is filed so long as the applicant has not been arrested. That being so, filing of a charge-sheet buy itself, in our view, does not put an end to the power to grant anticipatory bail under S. 438(1), Cr. P. C.
8. In Ramsewak v. 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 prevent the mischief which is sometimes played by false implication of innocent persons. Therefore, merely filing of challan cannot circumvent the extraordinary powers and the benefit conferred by the provisions of S. 438 of the Code. According to us the provision as contained in sub-sec. (3) of S. 438 of the Code relates to the working of the order of anticipatory bail passed under sub-sec. (1) of S. 438 and the manner in which it would be given effect to, by the police or the Magistrate as the case may be'.
To the same effect is the view taken by a Division Bench of the Punjab and Haryana High Court in Puran Singh v. Ajit Singh 1985 Cri LJ 897 : The Division Bench held thus :
'The main governing factor for the exercise of jurisdiction under S. 438 Cr. P. C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, to my mind, justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail. The High Court or the Court of Session may, however, decline to exercise its powers under S. 438(1), Cr. P. C. Keeping in view the fact that the Magistrate has summoned the accused through bailable warrant i.e., a relief almost similar to what can be granted by the court under S. 438(1) Cr. P. C., yet that does not mean that the court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not to the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant'.
9. It can, therefore, be seen that sub-sec. (3) of S. 438, Cr. P. C., does not in any manner restrict the power of the court to grant anticipatory bail, but on the other hand it only contains the procedural aspect that is necessary to give effect to the order of anticipatory bail passed under sub-sec. (1) of S. 438 and the manner in which it would be given effect to. Maybe the High Court or the Court of Session (would) not (be) inclined to grant bail keeping in view the fact that the Magistrate has taken cognizance and issued process, but the 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 : 1980CriLJ1125 (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 apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace'.
Filing of a charge-sheet and issuance of warrant are certainly the grounds which make the person not only to believe that he would be arrested but also to move the courts under S. 438(1).
12. One other aspect which is highlighted by the learned Public Prosecutor is that if anticipatory bail under S. 438(1), Cr. P. C., is granted in a case where cognizance is already taken and a warrant is issued, then, the officer arresting will be in a predicament and he may also be guilty of contempt of court if he does not execute the warrant issued by the magistrate and since there is no provision under S. 438, Cr. P. C., for such a situation it must be presumed that the powers under S. 438, Cr. P. C., come to an end after the Magistrate takes cognizance and issues the process. We see no force in this submission. Even in a case where anticipatory bail is granted before the Magistrate takes cognizance, the accused has to be arrested and released, and sub-sec. (3) of S. 438 provides for the same. Likewise, in a case where cognizance ins taken and process is issued, if the Court grant anticipatory bail under S. 438(1) the police officer shall execute the process, viz., the warrant, by arresting the accused and produce him before the Magistrate who shall release him on bail pursuant to the order of anticipatory bail granted by the High Court or the Court of Session. There may also be cases where anticipatory bail is granted under S. 438(1) without knowing that cognizance has been taken and process has been issued but that does not mean the order passed by the superior court under a statutory provision becomes redundant. We are aware that S. 70 Cr. P. C., lays down that every warrant of arrest issued by a Court under 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 : 1980CriLJ1125 (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 concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in S. 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in S. 438 must be saved, not jettisoned'.
Therefore, imposition of certain stringent restrictions on the scope of S. 438 Cr. P. C., is not warranted in the absence of any provision providing for the same. However granting of anticipatory bail is of extraordinary nature. The Supreme Court in Gurbaksh Singh's case : 1980CriLJ1125 (supra), while agreeing that the power to grant anticipatory bail should be exercised with due care and circumspection, however, concluded that the exercise of the power should be left to the discretion of the concerned court. The Supreme Court held thus :
'We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under S. 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, as laying down inflexible rules of general application'.
Then coming to the modalities regarding the passing of bail orders under S. 438(1) Cr. P. C., the Supreme Court held as follows :-
'But notice should issue to the Public Prosecutor or the government Advocate forthwith and the question of bail should be reexamined in the light of the respective contention of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under S. 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR 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 by the Supreme Court in Gurbaksh Singh's case : 1980CriLJ1125 (supra), it is purely within the discretion of the court, but the fact that the charge-sheet is filed and warrant is issued is yet another strong circumstance which the court should keep in view while exercising this extraordinary power. However, the non-exercise of this extraordinary power ordinarily is not due to lack of jurisdiction. The discretion to exercise such power is always there, but it always depends upon various facts and circumstances of each case.
13. For all the aforesaid reasons we hold that the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not pub an end to the power to grant bail under S. 438(1), Cr. P. C., and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person. Therefore, the decision of the Division Bench in Kamalakara Rao's case (1983) 1 APLJ 97 : (1983 Cri LJ 872) (supra), upholding the view taken by Madhusudhan Rao J., in N. Dasaratha Reddy's case (1975) 2 APLJ (HC) 214 (supra), and by Ramachandra Raju J, in Crl. M. P. 884 of 1981 does not lay down the correct legal position and consequently all these rulings are overruled.
14. The reference is ordered accordingly. The matter may be posted before a single Judge for disposal.
Ramanujulu Naidu, J.
(3-3-1986)
15. This is not a fit case for grant of anticipatory bail to the petitioner. The petition is dismissed.
16. It is however open to the petitioner to surrender herself before Police and move this court for bail.
17. Order accordingly.