CASE STUDY ON DEVELOPMENT AND EVOLUTION OF SECTION 438
OF CRPC
INTRODUCTION:
Section 4381 of Criminal Procedure Code 19782, is the statutory provision that provides for
anticipatory bail in case of non bailable offences. According to this provision any person who
has reasonably apprehended that he might get arrested on the acquisition of committing a non
bailable offence can apply to the High Court or the Court of Sessions for grant of a pre-arrest bail
or anticipatory bail. The High Court or the Court of Sessions may grant the bail on the basis of
certain grounds mentioned in the provision. The main feature of this provision is the accused can
be granted bail before he gets arrested by the police authorities on mere apprehension or
possibility of arrest.
This case study has been written with a view to analyse the legislative history of Section 438 of
Crpc, along with the policy behind this provision in the code and the socio-political factors that
made it necessary for the legislature to frame special provision for anticipatory bail in the Code
of Criminal Procedure.
LEGISLATIVE HISTORY
DIVERGENT VIEWS OF COURTS ON ANTICIPATORY BAIL:
The Provision relating to anticipatory bail was not present originally in the Code of Criminal
Procedure 1898. In the absence of it, the High Court had a sharp divergence of opinions on this
aspect while majority of the High Courts viewed that there was no such power vested in the
Court. In Amir Chand v Crown3 full bench of the East Punjab High Court observed, in the case
of a person who is not under arrest but for whose arrest warrants have been issued, bail can be
allowed if he appears in court and surrender himself. In State v Jagan Singh 4 the court expressly
acknowledged the principle that bail can be granted in anticipation to a person who under the
apprehension of arrest surrenders before the court. While on the other hand, the Madhya Pradesh
High Court was of the view that the grant of bail to a person pre-supposes that he is in the
1
https://indiankanoon.org/doc/1783708/
2
https://legislative.gov.in/sites/default/files/A1974-02.pdf
3
AIR 1950 E.P 53
4
AIR 1952 VP 87
custody of the police or of the court or that he is required to surrender. Accordingly, High Court
found it imaginary to talk of granting bail to a person who is under no such restraint. Therefore,
mere possibility of registration of a case and apprehension of arrest is not sufficient to invoke the
powers of the court to grant bail.
41st LAW COMMISSION REPORT-
Taking into consideration the divergent views of various High Courts, it was felt imperative to
evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at
the instance of influential people who try to implicate their rivals in false cases, the Law
Commission of India in its 41st report5 pointed out the necessity of introducing a provision in the
Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant
“anticipatory bail.” It Observed in its report that- “The Necessity for granting anticipatory bail
arises mainly because sometimes influential persons try to implicate their rivals in false cases 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
sturdy 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 then apply for bail”.
It took the view that if the accused person is not likely to abscond or misuse his liberty in some
way it is not justified to require him to submit first on custody and then apply for bail. In
pursuance of the recommendations of the Law Commission, the Union Government prepared a
draft bill conferring express powers on the High Court and the Session Court to grant
anticipatory bail. The aforesaid clause in the draft bill which were embodied the
recommendations of the Law Commission appeared as Section 438 in the Code of Criminal
Procedure.”
LEGISLATIVE INTENT, SCOPE AND POLICY BEHIND THE PROVISION
Police custody is an inevitable concomitant of arrest for non bailable of arrest for non-bailable
offences. The Concept of anticipatory bail was introduced in the Indian Criminal Jurisprudence
to rescue a person who is apprehending his arrest in a non bailable case. He can now apply for
grant of bail to the Court of Sessions or to the High Court before the arrest. The Purpose
5 https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082436.pdf
underlying section 438 of Crpc was to ensure that person anticipating arrest is not obliged to go
to jail till he is able to move court for being release on the bail. The Statement of Objects and
Reasons for incorporating Section 438 of the Code was to recognize the importance of personal
liberty and freedom in a free and democratic country. Caution analysis of this section makes it
evident that the legislative wisdom was to ensure respect for the personal liberty and also pressed
in service the age-old principle that an individual is presumed to be innocent till he is found
guilty by the Court.
