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Union of India (Uoi) Vs. Padam NaraIn Aggarwal Etc.

Court : Supreme Court of India

Reported in : AIR2009SC254; 2008(2)ALD(Cri)945; 2008(133)ECC167; 2008(159)LC167(SC); 2008(231)ELT397(SC); RLW2008(4)SC3251; 2008(13)SCALE171

..... it may be stated that section 438 has been amended by the code of criminal procedure (amendment) act, 2005 which now provides for hearing of public prosecutor before granting an application for ..... the code of criminal procedure, 1898 (old code) did not contain specific provision corresponding to section 438 of the present code of ..... sections 41-44 and 46 of the code of criminal procedure, 1973 deal with arrest of ..... the suggestion of the law commission was accepted by the central government and in the draft bill of the code of criminal procedure, 1970, clause 447 conferred an express power on the high court and the court of session to grant ..... notwithstanding anything contained in the code of criminal procedure, 1898 (5 of 1898), an offence under this act shall not be cognizable.25 ..... term 'arrest' has neither been defined in the code of criminal procedure, 1973 nor in the indian penal code, 1860 nor in any other enactment dealing with ..... an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the2code of criminal procedure, 1898 (5 of 1898). ..... the full bench of the high court summarized the law relating to anticipatory bail as reflected in section 438 of the code and laid down certain principles as to when discretionary power to grant anticipatory bail may be exercised by .....

Savitri Agarwal and ors. Vs. State of Maharashtra and anr.

Court : Supreme Court of India

Reported in : AIR2009SC3173; 2009(57)BLJR2687; 2009CriLJ4290; JT2009(9)SC460; 2009(9)SCALE514; (2009)8SCC325; 2009(6)LC2919(SC)

..... be of some significance to mention that section 438 has been amended by the code of criminal procedure (amendment) act, 2005. ..... the code of criminal procedure, 1898 (old code) did not contain specific provision corresponding to section 438 of the present code of ..... filed by the state and the complainant respectively, have been allowed and the protection granted to the appellants by the sessions judge, amravati vide order dated 18th december, 2007 in terms of section 438 of the code of criminal procedure, 1973 (for short `the code') has been withdrawn. ..... the suggestion of the law commission was accepted by the central government and in the draft bill of the code of criminal procedure, 1970, clause 447 conferred an express power on the high court and the court of session to grant ..... there is no warrant for reading into section 438, the conditions subject to which bail can be granted under section 437(1) of the code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is ..... constitution bench laid down the following guidelines, which the courts are required to keep in mind while dealing with an application for grant of anticipatory bail:i) though the power conferred under section 438 of the code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. .....

Balmukund Dubey and Others Vs. State of Chhattisgarh and Another

Court : Chhattisgarh

..... petitioners at the time of final hearing of the application for anticipatory bail, have filed the instant petition stating inter alia that though section 438 (1-b) of the code has been brought into statute book by the code of criminal procedure (amendment) act, 2005 but the said provision has not brought into force as on date under sub section (2) of section 1 of the code of criminal procedure (amendment) act, 2005 and, therefore, order directing personal presence of the present petitioners at the time of final hearing of their anticipatory bail being contrary to law ..... (8) section 438 of the principal act was amended by section 38 of the code of criminal procedure (amendment) act, 2005 (no. ..... (10) thereafter, in exercise of power conferred under sub-section (2) of section 1 of the code of criminal procedure (amendment) act, 2005 (no.25 of 2005), the central government has issued notification on 21st june, 2006, by which certain provisions of amendment act, 2005 has been brought into force, which states thus: ministry of home affairsnotificationnew delhi, the 21st june, 2006 s.o. ..... ) with effect from 23rd june, 2005 by code of criminal procedure (amendment) act, 2005 but the effective date has not been notified in exercise of power conferred under sub-section (2) of section 1 of the code of criminal procedure and, therefore, order passed by additional sessions judge is apparently illegal and bad in law, which deserves to be quashed. .....

Sundeep Kumar Bafna Vs. State of Maharashtra and anr

Court : Supreme Court of India

..... it will also be germane to briefly cogitate on the fasciculous captioned section 438 of the code of civil procedure, as amended by the code of criminal procedure (amendment) act, 2005 of the 203rd report of the law commission. ..... the futility of the appellant s endeavours to secure anticipatory bail having attained finality, he had once again knocked at the portals of the high court of judicature at bombay, this time around for regular bail under section 439 of the code of criminal procedure (crpc), which was declined with the observations that it is the magistrate whose jurisdiction has necessarily to be invoked and not of the high court or even the sessions judge. ..... the broad foundation of this rule is stated to be that section 46 of the code of criminal procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. ..... we cannot spell out either from the provisions of the code of criminal procedure, 1973 or from the principles of natural justice, any obligation on the magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless ..... an amendment was proposed to the provisions vide crpc (amendment) act, 2005 making the presence of the applicant seeking anticipatory bail obligatory at the time of final hearing of the application for enlargement on bail. .....

Shrenik Jayantilal JaIn and Another Vs. the State of Maharashtra Throu ...

Court : Mumbai

..... 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 ..... 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. ..... 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 ..... the section 438 in maharashtra amendment is hereby reproduced as follows: 438 direction for grant of bail to ..... 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. ..... section 438 in the central act was also amended in 2005, however, the amendment is ..... 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 ..... maharashtra (cr.applicationno.6592 of 2005 decided on 5.10.2005); (iii) rais shaikh .....

Asharaf a Vs. State of Kerala

Court : Kerala

Reported in : 2009(2)KLJ268

..... for pre-arrest bail has been filed on the assumption that all the aforementioned offences except the offence punishable under section 354 ipc are bailable offences and that by virtue of the code of criminal procedure (amendment) act, 2005 (act 25 of 2005) the offence punishable under section 354 ipc is now non-bailable.3. ..... , going by section 42(f)(viii) of the code of criminal procedure (amendment) act of 2005, (act 25 of 2005), it would appear as though there is an amendment to section 354 ipc, so far as the 1st schedule ..... but the said amendment incorporated as per section 42(f)(viii) of the amending act of 2005 is only to the effect that the word 'ditto' occurring in column 4 of the table in the 1st schedule to cr.p.c is replaced by the word ..... clauses (vii) and (viii) of section 42(f) of the amending act read as follows:(vii) section 353 for the word 'ditto', the word non-bailable shall be substituted;(viii) section 354 for the word 'ditto' the word 'bailable ' shall be substitutedthe said amendment became necessary on account of the amendment pertaining the immediately preceeding section namely section 353 ipc which has been made non ..... the amendment incorporated by section 42(f)(vii) of the amending act has come into force on 23.6.06, in view of the notification published as so 923(e) ..... punishable under section 452 ipc is non-bailable, justifying the invocation of section 438 cr.p.c. ..... in this petition filed under section 438 cr.p.c, the petitioner, who is the sole accused in .....

Ajeet Singh Alias Muraha Son of Vijay Singh Vs. State of Uttar Pradesh ...

Court : Allahabad

Reported in : 2007CriLJ170

..... in order to give effect to the law laid down by the hon'ble supreme court in this case, the provisions of the code have been amended by code of criminal procedure (amendment) act, 2005 by which section 50a has been inserted. ..... section 438 of the code is being reproduced below;438. ..... the legality of the proposed arrest cannot be gone into in an application under section 438 of the code. ..... however in view of the omission of section 438 cr.p.c from the state of u.p. ..... the relevant provision, section 438 cr.p.c has conferred wide powers in this connection to the sessions court or the high court to grant bail to an accused in the event of his being arrested in a non-bailable case 'if it thinks fit' subject to such conditions as are mentioned in ..... 16 of 1976, which became effective from 1.5.1976, has chosen to omit section 438 cr.p.c in the state of u.p. ..... in which orders were passed on 9.5.2006, (wherein i was a member) have strongly urged the state government to consider restoring section 438 cr.p.c. ..... the only remedy in my opinion when an accused is sought to be arrested in the case of a minor cognizable offence, where the arrest may not appear strictly necessary at the stage of investigation is the power of anticipatory bail conferred under section 438 cr.p.c. ..... an interim order restraining arrest, if passed while dealing with an application under section 438 of the code will amount to interference in the investigation, which cannot, at any rate, be done under section 438 of the code. .....

Chandra Kanjappa Kuchchikurwe Vs. State of Maharashtra and Another

Court : Mumbai

..... amendment of section 1 of act 25 of 2005 in the code of criminal procedure (amendment) act, 2005, in section 1, in subsection (2), after the words by notification in the official gazette, appoint , the words and different dates may be appointed for different provisions of this act shall be inserted. 7. ..... by the code of criminal procedure (amendment) act of 2005, (act no.25 of 2005), extensive amendments to the code of criminal procedure, 1973, (code) were introduced. ..... by the code of criminal procedure (amendment) amending act 2006 (act 25 of 2006), the aforesaid amendment act of 2005 came to be amended. ..... section 2 of the 2006 act (act 25 of 2006), provided for amendment of section 1 of the 2005 act (act 25 of 2005). ..... after the amendment, subsection (2) of section 1 of the 2005 act (act 25 of 2005) read as under: (2) save as otherwise provided in this act, it shall come into force on such date as the central government may, by notification in the official gazette appoint, and different dates may be appointed for different provisions of this act. 8. ..... by the said section, sub section (2) of the 2005 act was amended as follows : 2. ..... by section 42 of the said act, the first schedule to the code was amended. ..... the question that arises is whether the provisions of clause (f)(iii) of section 42 of the 2005 act have been brought in force by appointing a date therefor. .....

Chandran Vs. State of Kerala

Court : Kerala

Reported in : 2006(4)KLT550

..... the word 'bailable' is deleted and 'non bailable' is included however, because of the non implementation of section 42(f)(iii) of the code of criminal procedure (amendment) act, 2005, the offence under section 324 ipc still continues to remain as bailable.4. ..... though the code of criminal procedure (amendment) act 2005, act 25 of 2005, had been implemented from the appointed date, 23.6.2006, all the provisions contained thereunder, had not been brought into force. ..... 923(e), notifying that though 23.6.2006 is appointed as the date on which the provisions of act 25 of 2005 would come into effect the provisions of sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a) have been excluded.3. ..... the counsel cites the dismissal of the application, under section 438 cr.p.c. ..... under section 42(f)(iii) against section 324 ipc, in fifth column of first schedule of cr.p.c. ..... the offence under sections 341, 323 and 324 ipc are bailable. ..... therefore, section 324 is considered as non bailable and bail is being refused. ..... the learned counsel submits that the sessions court, thalassery, had dismissed the prayer for an order, under section 438 cr.p.c. ..... the petitioners are accused 1 to 3, in crime no.74/2006 of kolavalloor police station, for the offence punishable under ss.341, 323 and 324 ipc read with section 34 ipc.2. .....

Om Prakash Vs. State of Rajasthan and ors.

Court : Rajasthan

Reported in : RLW2008(3)Raj2401

..... but in view of the provisions introduced in section 378(1)(a), of the code of criminal procedure by way amendment act of 2005 w.e.f. ..... although jurisdiction of this court and that of the court of sessions judge to call for the records in exercise of their power of revisional jurisdiction under section 397 of the code of criminal procedure is concurrent. ..... even though this court has the power to entertain revision petition filed by the complainant directly before this court but the jurisdiction under section 397 (supra) being concurrently available to this court as well as court of sessions, that remedy should ordinarily be availed of by the complainant before the court of sessions in the first instance. ..... the provisions contained in section 397 of the code of criminal procedure are similar to the one contained in section 438 of the code of criminal procedure. ..... this revision petition has been filed at the instance of complaint against the order of acquittal of the accused-respondents dated 6.10.2007 whereby, they have been acquitted of the charges under section 147, 148, 323, 324/149, 325/149 ipc by the additional chief judicial magistrate, sawaimadhopur. .....