28th April 2021 Supreme Court

Section 438 of the Code of Criminal Procedure Code

Justices: CJI NV Ramana, Justice Surya Kant and Aniruddha Bose

It has been observed that even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them. In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice. It needs no mentioning, but this Court may also exercise its powers under Article 142 of the Constitution to pass such an order.

Such discretionary power cannot be exercised in an untrammelled manner. The Court must take into account the statutory scheme under Section 438 crpc, particularly, the proviso to Section 438(1) crpc, and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.

While referring Section 438 of crpc, it has been said by the Court that the focus of Section 438 crpc, when read in its entirety, clearly relates to the grant of anticipatory bail by the Court. Section 438(2) explicitly lays down certain factors that need to be considered by the Court before granting the relief sought. Section 438(2) lays down the conditions that may be 10imposed by the Court while granting the relief. Section 438(3) dictates the consequences of the grant of relief under the Section.

The only guidance relating to what is to take place once an application under Section 438 crpc, is rejected is found in the proviso to Section 438(1) crpc, which specifically provides that once an application is rejected, or the Court seized with the matter refuses to issue an interim order, it is open to the police to arrest the applicant.

While interpreting Section 438 crpc, it has been said by the Court that either while granting or rejection of an anticipatory bail application it has a direct bearing on the fundamental right to life and liberty of an individual.

The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the Legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief.

When the proviso to Section 438(1) crpc is analysed in line with the above dictum, it is clear that the proviso does not create any rights of restrictions. Rather, the sole purpose of the proviso appears to be clarificatory in nature. It only restates, the sole purpose of the proviso appears to be clarificatory in nature. It only restates, inter alia, the obvious proposition that unless an individual has obtained some protection from the Court, the police may arrest them. In line with the ruling in Gurbaksh Singh Sibbia (supra), the proviso cannot be read as constituting a bar on the power of the Court.

It has been further observed that without going into the question of whether Section 438crpc itself allows for such a power, as it is not necessary to undertake such an exercise in the present case, it is clear that when it comes to the High Court, it is clear that when it comes to the High Court, such a power does exist. Section 482 crpc, explicitly recognizes the High Court’s inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.