Chapter XXXII-—Provisions as to p 438 il ang 2400 Sec. . COMMENTS "4 lew nt) Act, 2008.—Section 437A is ali i) i soeriyaat of Criminal Procedure (, Ate a yy eat) fy Ay es—CrPC (A charg been inserted The section has tion 31. \ ay: 2008, secti inserted to provide for the court to require accuse, din . en. : b Seine nS to appear before the higher court as,and whe, ety al! i Hens issues notice in respect of an appeal against the judgment of the Tespective Cont Coy, Noles ‘on Clauses, Clause 40). ' . i t bit irecti il to person apprehending’. 438. Direction for grant of bail er ig a 14) Where any person has reason to believe that he may be ane accusation of having committed a non-bailable offence; he'may apply a2 High Court or the Court of Session fora direction under this Section fle the event of such arrest he shall be released on bail; and’ that Cou after taking into consideration, infer alia, the following factors, namely? (i) the nature and gravity of the accusation; 5). Hn (ii): the antecedents of the applicant including the fact as to whether has’pteviously undergone imprisonment on’ conviction by a Com in respect of any cognizable offence; u 1 fa iw tg ~ (iii). the ‘possibility of the applicant. to flee from justice; and an (iv) »where the! accusation has’been made'with the object of injuring humiliating the applicant by having him so arrested)" <"7 { nae fh either reject the application forthwith or i8Stie an i of anticipatory bail; / “°° Provided that, where thé High Court or} as the'casé may be, the Coutt 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 attest, without warrant, the applicant on the basis of the accusation apprehended in such application. «) (I-A) Where the Court grants an interim order under-sub-section (1), i shall forthwith caise.a notice being not less than seven days notice, togelit 9 be served on the Public Prosecutor. and the ith a view ,to..give the Public. Prosecutor 4 application shall be fal g heard whe ) The: presence 3 av ahGanings 2 : of the applicant seeking anticipatory, bail shall - me 7 . = 4 hie Ef final hearing ofthe application and pang oP ; [ led OM 2 ohau gual oe aera ae lure (Amendment) Act, 2005 (25 of 2005), section 38 DM" test lor to its substitution, it stood as under -— eave is Offence, Snag pier iy Ce ee on i 5 may, ii ee, 0 the High Court or the court of Session 10" ty onal aM Oey tas dre tam beeen wr aha der for the pra é HOWppoeton ” Ce ee Person appreh, arrest . Sec. 438 2401 the Court, if on an applicar det by : va Application tp; . ; 0 court considers such Presence necessary ithe Heeler Tete Justice. \" the Court or to any police Ome a ae anteater iin one iii) a condition that, the. pers Bead ( * previous permission o e eons not leave India without ithe _ (iy) such other. condition as may be, imposed under sub-section (3), of section 437;ias ifthe bail were tata under oe : : . (8) Ifsuch 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, te shall be released-on-bail;.and if a Magistrate taking cognizance of such offence decides that a wartant 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-section (1). S | : laine f Criminal Procedure, 1973, i section shall be substituted, namely’ 2, Dire t of bail to, person apprehending arres I ; easons to believe that he may be arrested on an accusation of having commiitted a non-bailable Oifence, he may apply to 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 Cumsidetation, infer alia; the following factors— : eagehen 7 tiatiire’ad Bravity or'seriousness of the accusation as apprehended by the applicant; antecedents'c ‘at ineltiding the fact as to Whether he has, on conviction by a iit B mnment fot a term in respect of any cognizable offence; aig smiliate or malign the reputation of the applicant by uit yobiuor : ende My se) the Court of Session, considers itiexpedient to bepas the case may gation (G) the Court shal» 02 Sec. 438 Chapter XXXIII—Provisions a to Bai 241 . es deem fit; and if the Court passes any order ' ie bier alia the following conditions, namely: SXting ti all make himself available for interrogation, bya Poligg m a ey order thereon, as th bail, such order shall incl (i) that the applicant shi when required; ut u q A : I not, directly or indirectly make any inducement, thre (ii) that th facts of the accusation against him so ag tg JPR, disclosing such facts to the Court o to any police officer; an ii the applicant shall not leave India without the previous Permission ofthe o oe ion as may be imposed under sub-section (3) of Section 437 i a was granted under that section. arlacbeareaserl) elena " the, rants an interim order und = , forthwi seen -aeipint days notice, together ee a copy of, Hee order f be serve Lon att Prosecutor and the Commissioner of Police, ot as the case my , the concemed Superinten i Police, with a view to give the Public Prosecutor a reasonable opportunity. of being heard wet ‘ application shall be finally heard by the a sitbemerducdedteidraigee 1 eu the applicant seeking ant 7 gatory at the rerio the Sache Reese of final order by the Court; ifon an weiss time of, fi the Public Prosecutor, the Court considers such presence necessary in the Interest of, ‘justice, ith *~’ (5) On the date indicated in the Court considers such Presence necessary in the interdst Gi. Public Prosecutor and the applicant and after’ due consideration’ of their contentions; confirm, modify or cancel the interim order made under sub-section (1).” i ~ Orissa —Following amendments were made by Orissa Act 11 of 1988, S.2 (wee. S. 438.—To sub-section (1), the following proviso shall be added, namely: “Provided that where the apprehended Aecusation rélates to ati offetice 'puitishable! with imprisonment for life or imprisonment for a term Of not less than seven years, no final order stall if may cit ‘made on such application without giving the State notice to present its case’ babies \. Uttar Pradesh —The following amendments were made by U.P. Act 16 0f 1976, ‘Section 9 (nef J May 1976). ; it . «| S. 438.—In application to State of Uttar Pradesh omit S. 438. West Bengal.—(1) The following amendments were made by W.B. Act 47 of 1981, section3 (w.e.f. 24 December 1982), S. 438.—In its application to the State Of West Bengal, o section 438(1), add proviso as under — __ “Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ot less than Seven years, no'final order shall e TSO haed, I sericnltth coe sivecoy gti ‘has reason to believe that he may, be arrested on an accusation of! ise lable offence, he may apply to the High Court or the Court oro s at in the event of such arrest, she shall, be rel Wor noise of t0 ride vial at Lig person has applied to the High Court or the a Section shall not, in the absence of any order 3 erson i ,0f such. pei of such ie term of not less than seven yar 20 ut giving the State not less than seven 4898cli jforgrant of bail to person Qppreh. arrest 2403 Sec, 438, Syn. 1 yfany person is arrested and detained in custod it i te fa ly by an officer-in-charge of a police 0 ee agate mecca a <0 q BON dak, it is Ae subject to the provisions of Secon a7 having jurisdiction, pending such disposal, shal ¢ provisions of sub-section (1) shall have effect 1 a) The P in thi i it i i contrary ined elsewhere in this Act or in any judgment, dectee jotwithstanding anything to the or order of any Court, Tribunal or other 2403 | 21. Issue of warrant 0.0. | 2418 ‘1/22. Taking cognizance consequent 2403 ! upon filing of charge-sheet—Not a 1, Soope and appticat is 2404 |) ground fo anticipatory bail 2418 5 Pre-artest and post-arrest bai i 23, Essential Commodities Act 2419 Be Spe 24. Sscheduled Castes and Sche« ci a 219 { i i ities) fi Print PS OE al Seay ch 2409 Ae of Atrocities), bal § Granting of pre-arrest bail for 4 25. Outer limit . 2419 unlimited period. «2410 | 26. Balance to be struck. 2419 4. Anticipatory bail—Counsel for,» |», |. 27. Person already in custody 2419 2419 2425 2434 “complainant or informant hasno, 28. Bail granted .... right of audience. 2411 | 29. Bail not granted . , Interference by Apex Court ;2412 | 30. Blanket order granting bai 9, Conditions .. . 2412 | 31.’ Enforcement of anticipatory {0,\ High Court and Court of Session... 2414 order 11.: High Court jurisdictio 2415'| 32. Acquittal of co-accuse 12, Territorial jurisdiction 2415 | 33.. Rejection of application for 13, Local jurisdiction, 2415 anticipatory bail ; Accused if to be 14, Special Judge... 2416 15, Lok Adal _ 2416 | 34. 2435 2435 2435 2435 16. Accused absconding 2416 | 35. Successive application: 2435 17. Stage for grant of bai 2416 | 36. Absence of provisions of Tim, fn 18. Duration. 2417 | “anticipatory bail in UL... 2436 19, Anticipatory bail—When can be ' ¢ | Lextended 20. Cognizance issued.. 37. Anticipatory bail, cancellation of... 2437 38. Revision. 2438)“ tea ) COMMENTS: 1, ‘Changes.—Section 438 is a new provision. ee ‘ GPC (Amendment) Act, 2005 (25 of 2005).—Sub-section (1) of section 438 has been substituted by new sub-sections (1)(1A) and (1B), This amendment in the section, will come into force from the date ofits notification. ACY Section 438 has been amended to the effect that (i) the power to grant anticipatory should be exercised by the court of Session or High Court after taking into, Consideration certain circumstances; (il) if the court does not reject the application for ** grant of anticipatory bail, and makes an interim order of bail it should forthwith ve notice to the public prosécutor and Superintendent of Police and the question of al Would be’ examified in the light of the respective contentions of the parties? and’ {ite Presenc ne of hearing it the person’seeking anticipatory bail in the court is mandato,N 2404 Sec. 438, Syn. 2 Chapter RAM rc Eavisions cy Bail ang 0) Ny ication.—Special powers have been conferred ont i it tat Pecan for ay a person on bail previous to his e . Hy ea i. nly known as anticipatory bail, imposing such Conditions as the a t, What is co Mss conditions laid down in clauses (i), (ii), (iii), and (iy) of su il i “ ae of anticipatory bail shall take effect at the time of arrest, Sectog i ision has been inserted as the majority view was that ther nde eadieaaecs provisions of the old Code, in order to Telieve g Person being disgraced by being detained in jail for some days before he can apply ty when he is implicated in a false case by arival; and apart from such case, Where al are reasonable grounds for holding that a person accused of an offence ig Ot Lik ere abscond, or otherwise misuse his liberty while on bail, there also Seems tg red justification to require him first to submit to custody, Temain in Prison for some hy and then apply for bail. It is clear that the salutary provision Was enshrined ing i 438 to see that the liberty of the subject is not put in jeopardy on frivolous Btoinds 4 the instance of unscrupulous or irresponsible persons or officers who may be in cha of prosecution [Balchand Jain v State of MP, AIR 1977 SC. 366 1977 CG Lig. (1976) 4 SCC 572 (SC)]. | whined Sub-section (1) of section’438 has been amended by CrPC (Amendine ) Act, 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by Hew sub. sections (1), (1A) and (1B). The guiding factors for grant of, anticipatory bail haye! been mentioned in sub-section (1) of section 438 itself. The court would grant OF refuse anticipatory bail after taking into consideration the following factors, namely; (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction byalcout in respect of any cognizable offence; (iii) the Possibility of the applicant to flee'from Justice; and (iv) where the accusation has been made withthe object of injuring ‘or humiliating the applicant by having him so ‘arrested. Anticipatory bail is’ not to be granted as a matter of rule, but should be granted only when a Special case is made out Siddharam Satlingappa Mhetre v State of Maharashtra, 2011 (1) SCC.694 SAIR2011 SC 312], Fests) Sige The protection provided under section 43 i inti iod and generally til fling ofthe lon 438, CrPC is for limited perios & | oft ge-sheet. On filing of the charge-sheet accused may move regulat bail application under section 437 or section’ 439, CrPC [Mehndi Virani v State of Maharashtra, 2011 Cr LJ 526 (528) (Bom)]. Lode Section 438 CPC isa self-contai (4) as inserted by Maharashtra Amendment’Act, 1993 are hot mutuall xc of 7 Provisions have to be read as a whole [Ashik Rameshchandra Shah v State Maharashtra, 2010 Cr Ly (NOC) 1026 (Bom) : 2010 (3) AIR Bom R 386]; ined Code and a scheme,in itself S ~ The ditection by High Court not to arr i fining to quash “opt cancel i est the accused while declining to, qua Tease a8 it amounts to an order under section 438 of the Code. ise Te ne YHabib Abdullah Jeetani, ATR 2017 ac Fee eine onl dooenect Se Of dowry: death, accusation against the petitio ale a sg tantra he a bal ill investigtion was over Los eld entitled io bo admitied to ali Anju v State, 2007 Cr LI (NOC) 143 (Dell 1”iti n for grant of bail to person appreh, arrest Sec. 438, Syn.4 2405 where wife got a case ae tered under sections 406 and 498-A IPC, and all articles f dot ree saith fi ‘om husband except ormaments, fact that husband was Sieased on at alton Sta Parents who were Tesiding separately were entitled to wary ball [Lalita v State of Punjab, 2007 (1) Crimes 166 (SN-P&H)]. pre-arrest and post-arrest bail—Difference-—The operations of sections 438 1 39 CHPC ate not oretlappet inasmuch as they are ea for different purposes. ti jubtedly there 1s a clear distinction between post-arrest and pre-arrest bail. For king 2 appt in ae of section 439 of the Code, a person has to be in custody and nin Vhd mM Meee ph ch etant of bail to person apprehending arrest ikshi 4, t Ly 4 : LR (2009) 4 Gau LT 33], 748 (4751) (Gau) : (2010) 3 GI tion 438 of the Code contemplates arrest at the stage of investigation and provides @ mechanism for an accused'to be released on bail should he be arrested during the: period of investigation: Once the investigation makes out a case against him he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been’ framed, cannot avoid appearing, before the trial court [HDFC Bank Lid v JJ Mannan, AIR 2010 SC 618:: {id) ! SCC 679 : 2010 Cr L3 2298 (SC)] in 4, Principles.—Principles of law relating to grant of anticipatory bail have been hid down by Supreme Court in Gurbaksh Singh Sibbia v State of Punjab, AIR 1980 $C 1632 : 1980 Cr LI 1125 : (1980) 2 SCC 565 (SC) overruling and negativing 7 out of8 propositions laid down in Gurbaksh Singh Sibla v State of Punjab, AIR-1978 P&H 1:1978 Cr LY 20 : 79 Punj LR 634 (FB) as follows: (1) The distinction between an ordinary bail and anticipatory bail is that the former being after arrest means release from custody of police, the latter being in anticipation of arrest is effective at the very moment of arrest. (2) The High Court and the court of Session having been given wide discretionary power have been left free in the exercise of their judicial discretion to gant bail on the particular facts and circumstances of the case and on such conditions asthe case may warrant, as they are free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or relevant under section 439. The wide scope and ambit of the discretion cannot be limited by; rading into it the conditions subject to which bail can be granted under section 437(1) orcut down by restrictions or conditions which are not there, or by devising a formula ‘0 grant anticipatory bail within a straight jacket. (3) The court must apply its own mind and decide the question without leaving it to be decided by the Magistrate under Section 437, as and when occasion arises. (4) The applicant must show by disclosing Secific facts and events that he has reasons to believe the existence of which is sine ful.non of the exercise of power by the court and not vague apprehension that he may Seamested for a non-bailable offence so that the court may take care to ‘specify the fitace or offences in respect of which alone the order will be effective and not a lanket order, (5) An order of bail can be passed conforming to the requirements of by tion and imposing suitable conditions without notice to the public prosecutor 'hotice to him should be issued forthwith and the question of bail should be re- ee ed in the light of respective contentions of the parties. (6) The operation of the t should not be limited to a period of time. In exceptional cases, the court may tutter = ©Petation to a short period until after the filing of an FIR in respect of the vi thin the applicant being directed to obtain bail. under section 437 or section 439 int short period of filing of FIR. (7) If the proposed accusation appears to stem M some ulterior motive to injure and humiliate the applicant, the order for Nee Maui es en2406 Sec. 438, Syn. 4 Chapter XXXII—Provisions as top, ail Qn, anticipatory bail would generally be made. On the other hand, if it fs ‘ he will flee from justice, order would not be made. It cannot be es inexorable rule that anticipatory bail cannot be granted unles: by mala fides. There are several other considerations, too numerous id combined effect of which must weigh with the court, such as nature of the charges, the context of the events likely to lead to the charges pea rio y te applicant’s non-presence at’ the trial, apprehension of tampering with Witellity of larger interests of the public or the State, the relevance of which cong sSeSang* pointed out in State v Jagjit Singh, AIR 1962 SC 253 : 1962 (1) Cy Filing of a FIR is not a condition precedent to the exercise of the Power 438, which can, however, be exercised even after filing of FIR, so lon, ae is not arrested. (9) An order of anticipatory bail does not in any wa le ay indirectly take away from the police the right to investigate. One a conditions imposed is that the applicant shall make himself available for inter "Sed by a police officer [vide sub-section (2) (1)]. Appropriate conditions under Stag (2).can_also be imposed so_as to assure uninterrupted investigation, SeCtig, conditions can be that the applicant should surrender himself to the police f of Suh period or he should be deemed to have surrendered himself ifa discovery is jon beg under section'27 of Indian) Evidence Act.:For'similar reasons an anticipato, should not be refused if a legitimate case for the remand of the offender to fies bai custody under section 167(2) is made by the investigating agency. Pole Except for, indicating the broad outlines for grant of bail and/ or anticipat no straitjacket formula can be prescribed for universal. application, as each case for | grant of bail has to be considered on its own merits and in the facts and circ of each case [Pravinbhai Kashirambhai Patel y State, of Gujarat, 2010 Cr L338 (3870),: AIR 2010 SC 3511 : (2010) 7 SCC 598}. j:.4 ‘baat ‘Anticipatory bail should not be ‘granted lightly. It should be'granted only after doing a careful assessment of timing and relevant facts.' Untimely bail may seriously affet investigation process [State of Karnataka v Rangappa;'2004 Cr LJ 3720 : AIR 204 Kant HCR 26381: 2004 (3) Rec’ CrR 495 (Kant)]. "While deciding the question af anticipatory: bail: the court’should not be guided by the’ cover of the allegations. It should look ‘into ‘the nature ofiallegations and decide’ whether a prima facie case's made out ornot [Rajesh Utra' Kumar v State of Chhattisgarh;2002 Cr LJ 1175 (11) 2 20), i gina : t he n. ve” that he may be angel on-bailable 0: 1 the expression “reason. to, believe” shows that Fi applicant may be arrested must be founded on reasonable grounds. Mere ‘eat ae “belief” for which reason it is not enough for the applicant to show that he hast , a ‘af * ar : agains sort of, apprehension that usemeens is going to make an accusation 28 ted. Grounds on which the belief on Be ? the non-bailable offence must be capab $i, e High Court or the court of Session ig ase has been made out, of for a (39: of Rajasthan, 2009 Ct LI 1311 °° 0 » 10 HY ‘ot é tortured a minor boy and caused st er during investigation found BH ? took i sIved in 13° criminal’ cases. TAF oh Co antecedents and other matter a Bre swijni oi 2 10112 _—for grant of bail to person appreh. arrest Sec. 438, Syn.4 2407 pirection. used anticipatory bail to accused [Bhubaneshwar Singh Deo v State of Orissa, 2004 a 4377 : 2004 (4) Crimes 259 : 2004 (22) Alll Ind Cas 438 (Ori)]. pail should not be refused merely on the ground that the petitioners would influence ine witnesses: gravity of offence should be taken into consideration [PG Gupta v State, 303. cr LI 1055 (1056) (Del) : (2002) 101 DLT 193 : (2003) 66 DRJ 129]. Ingiven cases the detention in custody after arrest is wholly unwarranted, in which cases anticipatory relief is well in order. A duty is, however, cast on the court in such situations fo examine the facts carefully and to ensure that no prejudice is caused to the investigation. jrisa delicate balance whereby the liberty of the citizen and the operation of the criminal justice system have both to be equally safeguarded.| Where it is pointed out that the action js mala fide or tainted the courts are required to reach out and:do justice by preventing harassment and unjustified detention [Nancy Jamshed Adajania v State of Maharashtra, 1993 Cr LJ 3465 : 1993 (3) Bom CR 68 (Bom) (MF Saldanha J)]. When such contradictions were found between FIR and statements recorded under section 161, CrPC as could be explained by the prosecution witness during the stage of evidence, bail of the accused applicant could not be granted [Murli Chaurasia v State of UP, 1995 Cr LI 2782 (All)]. There is no bar in filing an application under section 438, CrPC after filing of charge-sheet or after issue of warrant of arrest in a complaint case [Shamim Ahmed v State, 2003 Cr LJ 2815 : 2003 (3) Cur CrR 450: 2003 (4) Rec CrR 210 (Cal). When nature of charges levelled against petitioner are doubtful and also not constituting specific offences under Indian Penal Code then petitioner is entitled to anticipatory bail [Prof ND Rao v State, 2001 CrLJ 3739: 2001 (3) Crimes 409 : (2001) 21 OCR 335 (Ori). ) MLA D(S) [OOS OBOE bd Where allegations’ against the petitioner are of general-nature, anticipatory “bail would be granted [Om Prakash v State of Punjab, 2002 (1) Crimes 124 (P&H) x Where an influential person is the complainant against a weak person or in a case of political rivalry between two persons, the case is instituted against a political rival, anticipatory bail may be granted, but there, must be some indication that the allegations are false [Adri Dharan Das v State of WB, 2005 Cr LJ 1706 (SC) AIR 2005 SC 1057 2005 (1) Crimes 359 : (2005) 4/SCC 303]., camnad a secmralisadisii In this case the deceased husband left behind a suicidal note in Which wife’and her | 'elatives were held responsible for suicide. It was held that the ingredients of: abetment of suicide were not found and, therefore, the wife and her relation Were entitled to the grant of anticipatory bail [Samarth Shrivastava v State of Chhattisgarh, 2006 Cr LJ (NOC) 384 (Chhy], B ong now When the complaint did not show any allegation that the applicant’ had abused Semplainant saying few words adding name of their caste, the Scheduled Castes and cheduled Tribes (Prevention of ‘Atrocities) Act was not applicable to the case ‘and fq application for anticipatory bail ‘was held maintainable [Raj Kumar’y State { Chhattishgarh, 2006 Cr LJ (NOC) 389 (hha) ee? sae bla dobro. 2h cmp itasi ; When the FIR ‘sh that the offence under sections 294, 323 and 506, IPC gq alleged by the keen was not committed for reason that the victim belonged to Kitticular caste, application for anticipatory bail was held not maintainable [Baldey UhIEY State of Chhatisgarh, 2006 Cr LJ (NOC) 401 enna) Te ? 8 borsbietios ere the'case not made out for release of accused, release for ae ; erg a te Perio ito “P a Watch on his future is illegal and cannot be granted. [State of UP y \4 Be2408 Sec. 438, Syn. 4 Geri ET Seon ae In Ahmed, AIR 2002 SC:2435 : 2002 Cr LJ 3238 : (2002) 9 SCC 49] 300 : 2002 (1) East CrC 217 (SO)]. re-arrest bail to appellant on the grounds that Investigatin, oi be ‘aan to collect any material to ae ae appellant With Rac confessional statement of a co-accused was hele < A ly Conden le i ay involved in offence under Abkari Act under section 8(2) are not entitled of De on bail. There was misuse of discretion by the Sessions Judge under Section are [Muraleedharan v State of Kerala, AIR 2001 SC 1699 : 2001 Cr Ly 2187: 8,0, SCC 638 : 2001 (2) Crimes 239 (SC)]. (2 Ne lication for pre-arrest bond can be rejected by the Office at the inoer. the saa that it is not accompanied by an affidavit [Shaji PR v State o of keri CrLJ.240 (Ker)]. inh 4 ay Application for anticipatory bail can be allowed where there is no Cvidence ap: Epos with regard to recoyery of illicit liquor [Suresh Kumar Turkay i ie Chhattisgarh, 2007 (1) Crimes II (Chh)]. le Where the contents of FIR show that victim resided with applicant as his Wife teasonable period of four years, when refused to marry her. Provisions of sans 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of. Atrocities) re 1989, were not attracted the applicant was not in a position to dominate the wil oft victim. Itis a fit case to grant anticipatory bail [Praveen Kumar v State of Chthattisga 2007 (1) Crimes 452 (Chhattisgarh)]. Vacation/Sessions Judge has no jurisdiction to entertain bail applications of ‘accu persons relating to offence under the Act [State of Bihar v Braj Nandan Raut, 2001 LJ 3678 : 2001 (2) Pat LIR 809 : 2001 (4) Rec Cr R 769 (Pat)]. Ue AN When the offence under section) 7(1)(a)(ii) of the Essential Commodities Act, 1955 committed by accused is non-bailable then anticipatory bail cannot be granted [Batwa Saheb Lal Khawse v State of MP, 2002 Cr LJ 335 : 2001 (3) MPLJ 414 : 2001 (2) abu 126 (MP)]. Where the prosecutrix was legally married wife of the petitioner, the petition on the charge for offence under sections 366 and 366, IPC was granted anticipatory tal [Dhanaram y State of Chattishgarh, 2002 (1) Crimes 726 (Chhat)]- Where the accused has committed an offence under section 3(1) of the Scheduled Castes and Scheduled Tribes, (Prevention of Atrocities Act), 1989, application for anticipatory bail cannot be considered [Mavuram Papi Reddy v State of AP, 2008 cr LI (NOC) 163 : 2003 (1) Andh LT (Cri) 121. See also Rakesh Kumar Mishra y Sal of Chattishgarh, 2002. Cr L 4394 (Chhat) : 2002 (4) MPHT 10 : 2002 CeLJ 346] When process is issued by Magistrate by taking cognizance of offence thes anticipatory bail cam be granted [Kundal Majumdar v State of Tripura, 2002 Ct a +2002 (1) Gaj LR 282 (Gaj)].:In this ease, application for anticipatory bail wes ie by the respondents. apprehending, arrest for an offence under section | fe Customs, Act), The investigating agency was not given reasonable time 10 1, objection. The order of High Court was set aside and the matter was reman g) soc High Court [VOI y Yusuf Razak, ATR 2003 SC 4578 : 2003 Cr LJ 4560; 2003 ®) 28 ; 2003 (4) Crimes 238 : 2003 (7) Supreme 110 (SC)]. » Where the, stage of grant or refusal of anticipatory bail certain aspects of considered and later the investigating agency files St under spotion 163, CRC step, would not amount to interference with the administration of justice [Satish 1] Sa of Gujarat AIR 2003 SC 648 : (2002) 10 SCC 323 : (2003) (1) Crimes 201 £7002 (y Qi ae the cAS?Ke ign for grant of bail to person Qppreh. arrest prec Sec. 438, Syn.5 2409 jderation of application—principles indi pga AIR 2007 SC 136: 2007 CrL1 303 = 2007 FTO doe See discretion. When the judicial discretion exercised the Sessions Hs Se ee ang anticipatory bail is neither perverse nor erroneous onthe other hand ts based on relevant consideration Supported by reasons, there is : warant for the High Courtto say that the order of bail is obtained by dubious means Mi ‘ id Nath Yogi v State of Hi : Yokanti Chand Ni t Gryana, AIR 2003 SC 18 : 2003 Cr LJ 76: ns (1) SCC 326 : 2003 (1) Crimes 1: 2003 (7) Supreme 381 (SC)]. Under section 438, CrPC, discretionary power has been conferred on the court to t pre-arrest bail. The. judicial discretion vested in, the court requires to be : propriately exercised with proper application of mind in determining whether a case isafitcase for grant of anticipatory bail or Not [Singashan Singh v State of Bihar, 2015 (i) Ren CR (Criminal) 786 (SC); Ranjit Singh v State of Madhya Pradesh, 2013 (12) Scale 190] However in serious offencés, where further investigation is required to be done, the court; should be reluctant to grant pre-arrest bail [drun Patil v State of Maharashtra, 2009 Cr LY (NOC) 84 (Bom) : 2008 (6) AIR Bom R 59], In this case, the bail application of co-accused was rejected merely on the ground that there was reasonable possibility of her trying to influence the witnesses if she was enlarged on bail without weighing the nature and gravity of the offence and without being mindful of the fact that offence against her was mainly confined to documentary evidence and it was for this reason that the High Court granted bail to her. In view of gemuineness of the apprehension of the petitioner that he would be taken into custody the moment he put appearance and applied for bail, the accused was directed to be released on bail on furnishing personal security to the satisfaction of the concerned authority [P Das Gupta'y State, 2003 Cr LY 1055 : 2002 (101) DLT 193 :'2003 (66) DelRJ129(Del)]. ie Ue a Court while dealing with an application for bail is required to exercise its discretion ina judicious manner and not as a matter of course. Yet the court should be satisfied 4s to whether there is a prima facie case, but exhaustive explanation of the merits of a Case is not necessary [Gajanand Agarwal v State of Orissa, (2007) 1 Mad LJ 377 0) PE eapinry : Sr : j Ithas been held by the Supreme Court that for the grant of anticipatory bail, section 438need not be invoked only in exceptional or rare cases, Discretion must be exercised onthe basis of available material and facts of a particular case. Where the accused has Joined investigation and is fully co-operating with the investigating agency and is not likely to abscond, in'that event custodial interrogation should be avoided [Siddharam Sallingappa Mhetre y State of Maharashtra, AIR 2011 SC 312: (201 1) 1 SCC 694; QO) TSC (Cri) 514], * re Ina murder case, where the accused had fired indiscriminately at the deceased and AR had been lodged promptly, it was held by the Supreme Court that grant of Anticipatory ‘bail merely because of referérice of some old dispute in the FIR and the ‘antecedents of the accused, without considering the gravity of the offence, was not He &xercise of discretion. In this case, it was further held that the considerations iu Sranting anticipatory or regular bail are not substantially different. But anticipatory ail being an extraordinary privilege, should be granted only in exceptional cases [Jai (at Singh v State of Bihar, AIR 2012 SC 1676 : (2012),4 SCC 379 : (2012) 2 SCC 8], ; led [Sohan Lal Juneja v. State of (1) Crimes 20 (SC)].